Article 46(1) of Spain’s
Ley de Propiedad Intelectual is similar to France’s law in so far as it provides that an author transferring rights shall receive “a proportionate share in the proceeds of exploitation, the amount of which shall be agreed upon with the transferee.”
96 The retail price of copies of a work or performance tickets (less value-added tax) usually constitutes the basis upon which a proportionate share is determined.
97 A so-called “bestseller” clause of this sort exists in at least five countries of the European Union, including France as described above, Belgium and Spain, but generally only allows modification of the contract where the author has been paid a lump sum disproportionate to the revenues received by the producer.98 This provides a potential remedy for the author who has signed a “buy out” contract and is therefore unable, on the basis of that contract, to benefit from a big success of his or her work in the marketplace. At least in some countries, including Belgium and Poland, a statutory provision requiring publishers and holders of performance rights to provide accountings assists authors in obtaining benefit from the bestseller clause.
99 According to Hugenholtz, Germany’s bestseller clause did not apply to creators in all sectors and the courts were reluctant to find a gross disproportion.
100
In Germany, after a fierce, protracted battle between creators and publishers, the German Copyright Act was amended in 2002 for the purpose of “strengthening the contractual positions of authors and performers” (Amendment).
101 This Amendment was designed to redress the structural imbalance in contractual relationships between creators and their licensees and reflected the fact that “freedom of contract” is illusory when the parties to an agreement have grossly disproportionate economic strength. Dietz makes the following related observation: