“Fotopool”

In the examination required under Sec. 32(1), third sentence, and Sec. 32a(1), first sentence, of the Copyright Act of whether the remuneration agreed upon between a photo agency and a freelance photographer for the grant of rights of use and exploitation in images is equitable, the joint remuneration regulations for full-time freelance journalists working for daily newspapers and the collective agreement for employee-like freelance journalists with daily newspapers of 24 November 2008 can be considered as evidence due to a sufficiently comparable arrangement of interests, even if their temporal or personal scope of application is not given, if the photo agency, within the framework of the concrete contractual relationship, functions primarily in the style of an outsourced photo-editorial department of a publishing company. This is the case when the photo agency first and foremost supplies a publishing group’s publications with the contributions of the photographer and the photographer predominantly works by specific assignment of the photo agency, which informs the photographer which editorial department ordered the photo reporting and where it will publish the photo.