Exception to antitrust law: fixed prices as protection for books as cultural assets

As an exception to the general antitrust regulations, books, including e-books, must comply with a price set by the publisher in Germany. This is justified by the special status of the book as a cultural asset. For example, fixed book prices do not apply to used books, second-hand copies and collective orders for school lessons.

From Prof. Dr. Patrick RöslerProfessor of Banking Law at the Allensbach University

The law on fixed prices for books, the Book Price Fixing Act (BuchPrG), obliges all those who publish or import books to set and publish a price, including VAT, for sale to the final consumer (§ 5 BuchPrG). All those who sell new books commercially or commercially to end customers are obliged to comply with the retail price fixed by publishers or importers (§ 3 BuchPrG).

Scope of application of the BuchPrG

Books within the meaning of the law are products that are considered to be predominantly typical for publishing houses or bookstores are to be viewed.[1] Books therefore do not fall within the scope of the BuchPrG if they do not have a typical publishing or book trade focus, i.e. if they do not originate from publishers and cannot be distributed via the book trade, e.g. private prints, company, association or academic publications. In principle, books are included in all forms: bound, paperback, as loose-leaf works or subsequent deliveries. According to a clear decision by the legislator, this also includes e-books. Magazines and newspapers are not covered by the BuchPrG, but fixed prices can be established for them by contract, which is expressly permitted by Section 30 GWB.

Pricing

The final customer price must be Publisher or importer. The fixed price is the final price for the consumer/end customer including VAT. The reference point for the final price is the respective edition of the title and not the work in the copyright sense.[2] Only the final price is fixed. This means that the retailer cannot change it. Sales commissions or purchase prices between the publisher, intermediary and retailer, on the other hand, can be freely agreed.[3]

The prices must be set uniformly for a product. However, a different price may be set for the same content in different media, typically in the case of paper book and e-book editions of a work.[4] If both editions are sold as a package, special prices are permitted. However, flat rates for unlimited e-book downloads are not permitted, as this would undermine the fixed book price system.[5] On the other hand, (e-)book lending is permitted, even as a flat rate, if only a time-limited reading right is granted, as the BuchPrG only regulates the price when the work is purchased.[6]

In general, other prices for the same work are permitted if objectively justified, so-called parallel editions, Section 5 (5) BuchPrG. A classic example is the paperback edition, which is regularly published after the hardcover edition, but is then sold at a lower price.

In addition to the retail price, the publisher or importer may also set special prices, which are regulated conclusively in Section 5 (4) BuchPrG:

• Series prices for the sale of a series of related works.
• Quantity and graduated prices. These must also be published accordingly, i.e. usually via the VLB. Textbook graduated prices are regulated conclusively in Section 7 (3) BuchPrG.
• Subscription prices for orders placed before the publication of the work.
• Special prizes for companies, associations, authorities and other organizations, provided that a member of this organization was significantly involved in the book.
• Special prices for magazine subscribers, provided the books accompany the magazine, i.e. are thematically related to the magazine.
• Partial payment surcharges must be demanded for installment payments.

Price compliance

Section 3 of the BuchPrG provides for a statutory exception to the fundamental prohibition of agreements restricting competition (Section 1 GWB, Art. 1 TFEU) in the form of vertical price maintenance. With this price maintenance obligation, the legislator wants to ensure that the bookseller receives the fixed final price in accordance with Section 5 BuchPrG when selling to end customers in Germany.[7] Anyone who sells books commercially or commercially must therefore demand the retail price from the buyer.

The regulation thus prevents customer loyalty programs, for example through vouchers and other, even disguised, discounts.[8] The details are difficult to define, especially in the case of discounts, and are also disputed among lawyers. The Discount ban is in any case breached in the cases of Section 7 BuchPrG, which, for example, allows exceptions for authors, other publishers or defective copies and prescribes specific discount scales for orders from schools. In addition, Section 7 (4) BuchPrG permits the addition of low-value goods or services such as small promotional items. The guideline for low value is two percent of the book price from the buyer's point of view.[9]

[1] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 2 para. 1, 7 with further references.

[2] BeckOK InfoMedienR/Hennemann, 39th ed. 1.11.2022, BuchPrG § 5 marginal no. 1

[3] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 5 para. 1.

[4] BeckOK InfoMedienR/Hennemann, 39th ed. 1.11.2022, BuchPrG § 5 para. 4.

[5] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 5 para. 2.

[6] BeckOK InfoMedienR/Hennemann, 39th ed. 1.11.2022, BuchPrG § 3 para. 7.

[7] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 3 para. 1.

[8] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 3 para. 1.

[9] Kübler in: Ulmer-Eilfort/Obergfell, Verlagsrecht, 2nd ed. 2021, § 7 para. 19 et seq.