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SUMMARY
  • On June 7, 2019, the highly controversial EU Copyright Directive (“Directive”) came into force, requiring EU Member States to transpose its provisions into national law by June 7, 2021.
  • To recap, the most relevant provisions of the Directive require the implementation of the following rules into national law:
    • Online content-sharing service providers’ liability for copyright-infringing content, Article 17
      Online content-sharing services are subject to direct liability for copyright-infringing content uploaded by their users if they fail to prove that they made “best efforts” to obtain the rights-holder’s authorization or fail to evidence that they made “best efforts” to ensure the unavailability of such content. They are also liable if they fail to act expeditiously to take down uploads of work for which they have received a takedown notice.
    • Exceptions and limitations to copyright protection
      The Directive introduces exceptions and limitations (e.g., for text and data mining (incl. in favor of commercial enterprises)); provisions regarding collective licensing; and recalltransparency, and fair remuneration rights for authors.
    • Ancillary copyright for press publishers, Article 15
      Press publishers are granted an ancillary copyright for press publications, covering the reproduction and making available of such content by information society service providers (excluding only hyperlinks accompanied by “individual words or very short extracts”).
  • The German Federal Ministry of Justice and Consumer Protection’s latest draft act (Referentenentwurf) for the national implementation of the Directive was leaked in September 2020 (“German Draft Act”).  In summary, the current German Draft Act proposes to implement Article 17 as follows, deviating in part from the EU Copyright Directive:
    • De minimis use: In contrast to the EU Copyright Directive as well in contract to the German Copyright Act, the German Draft Act additionally provides for a de minimis copyright exemption for non-commercial minor uses such as 20 seconds (against a statutory license fee to be paid to collecting societies). This is the most criticized provision of the German Draft Act and makes it very likely that this draft will be revised again by the German legislature shortly.
    • Flagging: Furthermore, without any legal basis in the Directive, as to avoid the risk of over-blocking, based on the German Draft Act, users shall be technically enabled to flag their content as (i) contractually authorized or as (ii) authorized based on copyright exemptions, if such content is identified to them as blocked content. If content is flagged, the provider is not obligated to block or remove content unless the flagging is obviously incorrect.
    • Online content-sharing service providers’ liability for copyright-infringing content: The German Draft Act follows the provisions of the Directive on the scope of liability for online content-sharing service providers.
    • Licensing: Going beyond the Directive, the Draft Act imposes a unilateral obligation on online service providers to contract with representative rights-holders. Effectively, online service providers will have to accept licenses available through a collecting society or a major rights-holder under certain conditions such as the appropriateness of the requested remuneration.
    • Blocking and Removing: If a rights-holder has provided corresponding information to an online service provider, online service providers are obligated to block non-authorized uses of rights-holder’s work (“stay down”). Similarly, following a rights-holder’s request after a work has already been uploaded without authorization, online service providers are obligated to remove such work (“take down”) and to block the work in the future (“stay down”). Factually, the German Draft Act thereby embraces the use of upload filters.
    • Copyright Exemptions: The Draft Act expressly determines copyright exemptions under the German Copyright Act (e.g., caricature, parody, pastiche) as being applicable.


Continue Reading EU Copyright Directive – Quo Vadis: First Steps Towards its German Implementation

The Directive on Copyright in the Digital Single Market (Directive) was finally approved by all EU legislative bodies on April 15, 2019. Introducing “modernizing EU copyright rules for European culture to flourish and circulate” was a key initiative of the European Commission’s Digital Single Market (DSM), which, according to the Commission’s President Jean-Claude Juncker, has now been completed by the Directive as “the missing piece of the puzzle.” The Directive was approved, just in time for the elections to the EU Parliament taking place in May 2019. Within a period of 24 months, the Member States are required to implement the Directive’s provisions into national law.

Various Member States have issued, along with their approval of the Directive, statements regarding their interpretation of the Directive and voicing quite different views about the upcoming implementation process. While Germany strongly opposes the notion of upload filters, it appears that France is in favor of a copyright protection mechanism that includes upload filters. At the same time, it remains a pressing question whether currently available algorithm-based filters would even be able to sufficiently differentiate between infringing and non-infringing content.
Continue Reading The EU Copyright Directive Passes – But Member States Remain Split on Upload Filters