Binding nature of the tariff estimate in case of breach of duty to provide information under copyright law

Facts

Parties:
Appellant: ProLitteris, Swiss Copyright Society for Literature and Fine Arts, Cooperative, represented by attorney Carmen De la Cruz Böhringer as well as attorneys Florian Müller and Roman Elsener.
Respondent: [A. GmbH] .

Facts:
ProLitteris, a copyright society, issued several invoices to [A. GmbH] for copyright remuneration for the years 2015 to 2018. The invoices were based on the joint tariffs GT 8 and GT 9. The defendant disputed the claims and asserted that the tariffs were not applicable as it did not have a network or a scanner. The Commercial Court of the Canton of Aargau ordered the defendant to pay part of the claimed amount. ProLitteris then filed an appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court examines ex officio and with free cognition whether a legal remedy is admissible. The appeal is directed against the final decision of a cantonal court in a civil matter. The previous instance decided as the sole cantonal instance, which is why the appeal in civil matters is admissible regardless of the amount in dispute. The Federal Supreme Court applies the law ex officio and is neither bound by the arguments invoked in the appeal nor by the considerations of the previous instance.

The appellant accuses the previous instance of disregarding the binding nature of the approved tariff GT 9, including the deemed approval fiction under Art. 59 para. 3 CopA, and of drawing incorrect conclusions from the breach of the duty to provide information (Art. 51 para. 1 CopA) by the respondent. The previous instance assumed that the respondent had not fulfilled its duty to provide information and that the appellant was therefore entitled to estimate and invoice. The respondent had not fulfilled its duty to provide information, which is why the estimate was deemed to be acknowledged.

The Federal Supreme Court finds that the tariff-provided recognition of the estimate is to be disregarded due to the respondent's claim, raised only in the course of the previous instance's proceedings, that it does not have a network, which is not substantiated and also not apparent. The duty to provide information under Art. 51 CopA aims to strengthen the position of the collecting societies vis-à-vis users in the area of uncontrollable mass uses. Lack of or inadequate cooperation can be taken…