GWA Jahrbuch 2003
Author: Dr. Eberhard Kolonko,

The successful fight against the attempt of a group of professors to revise copyright contract law at the expense of the advertising industry was a new and encouraging experience. Never before has the attempt of a pressure group to change a law with the help of the government (governments like helping artists, especially in election years) failed so swiftly and so extensively. And never before have those affected formed such a solid body of supporters.

The protests of the entire advertising industry, the publishing houses, the
media, and the advertising agencies, supported by their professional associations, such as the GWA, VDZ, BDVZ and ZAW, were lodged far beyond the usual hearings of the Ministry of Justice. They also invested time and money in an unprecedented joint advertising campaign, thus informing, and raising the awareness of, the public and therefore of the voters.

Anyone who was involved in the frustrating alibi hearings in the Ministry, and anyone who went to a hearing only to read in the press the very next day that the draft bill had been adopted in the cabinet, cannot help but feel a certain sense of satisfaction at the failure of the draft bill in its essential intentions.

Many years previously, also in an election year, during the creation of the artists' social security act, those involved in the hearing of those "affected" were confronted to their utter disbelief and incredulity with the inexorable workings of legislative machinery once set in motion, closed off from the outside world like an embryo and inaccessibly distant from the objections of the economic groups affected.

In the case of the draft bill on copyright contract law, the move into the public eye was one of the decisive factors in the far-reaching revision of the draft. The effect of the publicity given to the arguments against the attempt to introduce a legal claim for remuneration and to establish the liability of any company from the licence chain, and finally the compulsory arbitration to reach collective agreement-type regulations has been obvious. Leading specialist legal publications now acknowledge that the economic effects of the draft bill of the professors and the Ministry were evidently misjudged or suppressed. It is alleged that the authors of the draft appear frustrated by a strong body of opponents which has carried out an "outrageous campaign" of articles, expert reports, newspaper advertisements and television commercials which have led to the failure of the law in its very essence.

Publicity helps publicity. This is a new phenomenon. Quite clearly, the best arguments have little effect if they are only presented to the "opponent" - an opponent whose main aim is to continue his work undisturbed and unnoticed by the public.

The recognition that publicity's best defence is the very means controlled by itself, should lead to a new self-confidence in the communications sector. Moreover, the most unlikely institution is contributing to this self-confidence – the courts.

The European Court of Justice in Luxembourg started this trend by developing a new consumer model. The judges go by this model when faced with decisions as to whether an advertisement is misleading, whether the consumer is enticed to buy by "exaggerated incentives", and whether the consumer is subject to the "psychological obligation to buy" in a prize draw or raffle.

As far as the German courts are concerned, until now the consumer has been a very susceptible being because, in the judges' view, he only reads advertisements superficially, is not well-informed, has no sense of humour, nor can he distinguish between serious and deliberately exaggerated advertising messages.

The German courts have had to leave behind this image of the consumer of which they had grown fond. The higher-ranking European Court of Justice sees the consumer as more intelligent, more informed and as having a sharper sense of humour as well. Following the decision of the European Court of Justice, assessments of advertisements from now on must be based on the assumption that the average consumer is informed, attentive and intelligent. According to this new model, the consumer can perfectly differentiate between exaggeration and reality, he knows that advertising primarily points out the positive features without mentioning the negative points, he can make very good judgements of his own about prices and quality, makes thorough comparisons of prices and even has a certain degree of humour as well.

The latest judgements made by the Federal Supreme Court – our highest and in recent years also rejuvenated court – follow the progressive European Court of Justice. They make very refreshing reading and have similarly refreshing results:

• The Higher Regional Court (OLG) of Cologne still regarded it as a psychological obligation to buy if a mail order company offered a cotton scarf, normally valued at about ten Marks, for two Marks to someone who was ordering at least 55 Marks' worth of cosmetics on a trial basis. The person ordering could keep the scarf even if he returned the cosmetics.

The Federal Supreme Court (BGH) reversed this decision in the verdict dated 6 June 2002. It sees no psychological obligation to buy. It sees life as it really is, namely that the customer was able to make his decision "without outside influences and at home in peace".

• With the verdict dated 25 April 2002 the Federal Supreme Court quashed a judgement made by the Higher Regional Court of Nuremberg. The slogan "The 'Stone Age' is over" used in the advertisement of a manufacturer of wooden frame houses was seen by the Nuremberg judges as an undue and belittling comparison with the products and services offered by the members of the association of the brick industry. The association felt that the slogan was disparaging to the manufacture of brick-built houses and as such could not merely be regarded as a joke.

It is gratifying to read the reasoning of the Federal Supreme Court, stating that the average informed consumer does not take the disputed slogan seriously as a factual statement on account of the humorous play on words and the linguistic pun contained therein.

"Humorous play on words", "linguistic pun" and "slogan", instead of "advertising speak" as used to be the case in previous verdicts – this is the new language used by our highest court. A significant proportion of this can be attributed to a recognition of the achievements and the quality of the work of advertising agencies – long awaited after many a humiliation.

The experience gained in the fight against the "professors' draft" on copyright contract law and the encouraging new decisions made by our highest court can engender a new self-confidence in the advertising sector. This will also be required in future struggles against new attempts by the European Commission and by the German legislators to introduce or extend bans on advertising and to announce curbs on advertising by imposing excessive consumer protection regulations. An important foundation for success in these clashes is a strong sense of self-confidence on the part of the communications sector agencies, combined in a recognised, respected and active association.