Lawyer Dieter Wallenfels, the price maintenance trustee of the publishers, currently sees an unsolved problem, the “crux with the defective copies”. That was the reason for our conversation today.
Mr. Wallenfels, where do you see the problem in dealing with defective copies?
Dieter Wallenfels: In the crowd.
But the problem is not new …
That’s true. Last year almost 80,000 new book titles came onto the market, not including e-books and print-on-demand. That is less than 10 years ago, when the 100,000-title number seemed attainable, but it is still more than the book market can absorb.
And that leads to extensive returns of unsold books from retailers.
Yeah, I understand the publishers thinking about what to do with it. Spoil? Closer is the endeavor to bring such books to the reading public as a modern second-hand bookshop at low prices. Here, however, the fixed book price sets limits.
Returns are also subject to fixed prices?
Yes, unless they suffer damage on the way back from the book trade to the publishers or to sales companies commissioned by them to take back the returned goods, so that they are to be regarded as defective copies for which the Fixed price does not apply.
And that means now?
The separation of newly released returns from those with damage is time-consuming. Abuse occurs in this situation. New books are deliberately damaged (“faulty”) or stamped “reduced-price defective copy” even though they have no defects. Such abuses are a constant topic in the industry. The branch parliament of the Börsenverein already stated in its meeting on June 24, 2008 that the sale of false copies below price not only violates the price maintenance, but also damages the book market considerably.
As a price maintenance trustee, you were commissioned to take action against such abuses?
Yes, the industry parliament has commissioned us to systematically pursue legal violations in this area in the interests of the general book trade. The Börsenverein working group “Processes, Rationalization and Organization” should also deal with the problem. In April 2009, she presented extensive recommendations for optimizing the returns system in the book trade. According to AG Pro, the key to significant process optimization lies with the publishers. A cleanup of the uncontrolled growth must come from the publishers in the lead, but necessarily in cooperation with the trade.
And since then you have been dealing with the problem …
Unfortunately, because the recommendations of the AG Pro on remissions have had little effect, as a glance at the voluminous junk boxes in the book trade shows. The legal situation is clear after a series of fundamental lawsuits that the price maintenance trustees have conducted: books new to the publisher with the stamp “defective copy” are still price-bound. The Frankfurt Higher Regional Court already ruled on July 26, 2005 – Az. 11 U 8/05. The ban on offering new books at prices other than those set by the publishers “, in the opinion of the Senate, also includes books that actually have no further defect than the mere marking as defective copies”. Such books are not exempt from fixed prices according to § 7 Paragraph 1 No. 4 BuchPrG. Otherwise, according to the court, the way would be free for an attractive secondary market that could jeopardize the law’s goal of securing an efficient market for publishing products and promoting their role as a cultural asset. This must also be taken into account when interpreting the exemptions from fixed prices.
So that means?
Exceptions are to be interpreted strictly. The complete elimination of fixed prices for defective copies is a far-reaching exception compared, for example, with the regulation for defective copies in Austria: There, only a customary deviation from the retail price in relation to the defect is permitted (Section 6 (1) (3) BPrBG).
Although the legal situation is clear, is there still a current legal dispute?
Yes. A not exactly insignificant bookselling company was wrongly selling publisher-new books below retail prices that were wrongly marked as defective copies and refused to issue a declaration of discontinuance. She argued that the stamp alone caused the defect. Since fixed book prices are an exception to the prohibition of vertical price maintenance, antitrust law requires that the scope of application be appropriately restricted, and exceptions to fixed prices must therefore be interpreted broadly. It depends on the customer’s point of view. And for them a book with a stamp of defects is not worth the fixed price. So there is a defect.
Isn’t such an argument dangerous for price maintenance?
Yes very. It is astonishing that a respected bookstore has let its lawyers get away with such arguments, which one would have expected from the Monopoly Commission, which is critical of price fixing. One should consider the consequence: if every bookseller had the opportunity to sell price-linked new books at any price by means of a defective stamp, the end of the fixed price would not be far off.
I know you keep saying that those who oppose fixed prices might argue that the book industry itself doesn’t take fixed prices seriously.
In the above case, however, the argumentation will not be successful, because the Frankfurt Higher Regional Court found in the previous judgment that the deficiency regulation in the BuchPrG is not comparable with the civil-legal definition of error. The wording of the law (“Books that are marked as defective copies due to damage or other defects […]”) Clearly show that there must be an” other defect “similar to dirt or damage and the books are therefore not price-bound.
Last but not least, the industry will have to be measured by the handling of defective copies, to determine whether its behavior corresponds to the expectations that the legislature had when granting the privilege of fixed prices, the only one besides those for prescription drugs
There is more to the judgment that the industry should know….
Yes, in its judgment the Frankfurt Higher Regional Court also made another important finding: a bookseller cannot shift responsibility to a supplier from whom he has purchased the books with the appropriate labeling. The only decisive factor is: The injunction is directed against the retailer as the person who sells price-linked books as the ultimate buyer at a lower price than the retail price, without an exception under the Fixed Price Act taking effect. And anyone who, as a publisher or intermediary, wrongly stamps books that are free from defects is liable under the provisions of the UWG. The same applies to deliberate damage (“defects”) to books. In a further judgment of May 15, 1997 – Az. 6 U 85/96 – the Frankfurt Higher Regional Court found that the fixed price would be undermined if a dealer intentionally damages new books and then sells them as defective copies.
So another construction site besides the problem of terms and conditions that is currently occupying the industry?
Yes, a dangerous one. Let us recall the remark that the former President of the Bundestag Norbert Lammert wrote in the book trade in the book trade in 2006: “Fixed book prices are not threatened by politics, but by the industry. If it does not last, look for the causes in your own ranks. “
Last but not least, the industry will have to be measured by the handling of defective copies to determine whether its behavior meets the expectations that the legislature had when granting the privilege of fixed prices, the only one besides those for prescription drugs. “
Christian von Zittwitz asked the questions
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