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

Despite the coronavirus pandemic, the process of implementing Brexit continues. One of the key Brexit issues for the tech sector is the extent to which the UK will either align or diverge its digital regulations with the EU.

Both the UK and EU have set out their intentions for their post-Brexit relationship in matters relating to technology, digital, and telecoms issues. There are signs that both the UK and EU will seek early alignment in key tech/digital compliance areas: is this a sign of things to come?

The UK government recently published its draft working text for a comprehensive free trade agreement between the UK and the EU (the “draft text”). As we explain below, the draft text covers (1) digital trade, recognising the importance of adopting frameworks that promote consumer confidence in digital services, (2) telecoms, and (3) audiovisual services. Intriguingly, the draft text aims to maintain regulatory alignment between the UK and the EU, insofar as possible, which could be a sign of the extent to which the UK plans to align with the EU (rather than forge its own path), both in these three areas and elsewhere, once the Brexit transition period is over.
Continue Reading Digital Compliance in Europe: Regulatory Alignment Post-Brexit

A new report from the U.S. Copyright Office suggests that Congress should fine-tune the Digital Millennium Copyright Act (DMCA) to, among other things, alter the takedown system that platforms must adhere to in order to be eligible for the safe harbor the DMCA affords to online platforms when third parties post infringing content. Read about

China’s “internet police,” who coordinate online censorship, have become especially busy since the coronavirus outbreak.

Inspired by homicides that were precipitated by social media posts created by one group of teenagers to incite another, a Florida bill would allow law enforcement to charge juveniles with a misdemeanor for posting photos of themselves with firearms online.

In March, Socially Aware reported on a lawsuit involving several prominent news outlets’ publication of a photo of NFL quarterback Tom Brady on Twitter. The case had the potential to upend a copyright and Internet-law rule that, in the words of a Forbes columnist, “media companies had viewed as settled law for over a

Last week, German regulators decided to no longer accept the widely used “JusProg” software as a sufficient means for online service providers to comply with statutory youth protection requirements. The decision is effective immediately, although it will most likely be challenged in court. If it prevails, it puts video-sharing platforms, distributors of gaming content, and online media services at risk of being held accountable for not properly protecting minors from potentially harmful content. For the affected providers, this is particularly challenging because it will be hard, if not impossible, to implement alternative youth protection tools that will meet the redefined regulatory standards.

This alert provides the legal background for the decision and discusses its implications in more detail. It is relevant to all online service providers that target German users.
Continue Reading Youth Protection in Germany: Are Online Age Checks & Daytime Blackouts Ahead?

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

A new law in Australia makes a social media company’s failure to remove “abhorrent violent material” from its platform punishable by significant fines. The law also states that the executives at social media companies who fail to remove the content could be sentenced to jail time.

The European Parliament voted to approve the Copyright Directive,

One of the next big items in Europe will be the expansion of “ePrivacy,” (which, among other things, regulates the use of cookies on websites). While the ePrivacy reform is still being worked on by EU lawmakers, one of the items the ePrivacy Regulation is expected to update is the use of “cookie walls.” Recently, the Austrian and UK data protection authorities (DPAs) issued enforcement actions involving the use of cookie walls, albeit with different findings and conclusions.

Cookie Walls

A cookie wall blocks individuals from accessing a website unless they first accept the use of cookies and similar technologies. The practice of using cookie walls is not prohibited under the current ePrivacy Directive.

However, the European Data Protection Board (EDPB), the successor to the Article 29 Working Party, has issued a non-binding opinion that the use of cookie walls should be prohibited under new EU ePrivacy rules. The EDPB argues that cookie walls run contrary to the General Data Protection Regulation (GDPR): “In order for consent to be freely given as required by the GDPR, access to services and functionalities must not be made conditional on the consent of a user to the processing of personal data or the processing of information related to or processed by the terminal equipment of end-users, meaning that cookie walls should be explicitly prohibited.”


Continue Reading The Cookie Wall Must Go Up. Or Not?

In 2019, the European Court of Justice (CJEU) is expected to clarify one of the key open issues in EU copyright law: the extent to which online platforms such as YouTube can be liable for copyright infringement caused by user-generated content—content uploaded on to the Internet by users such as music, videos, literature, photos, or the streaming of live events such as concerts. The CJEU decisions are eagerly awaited by both media and copyright owners and by online platform operators—and will mark yet another stage in the on-going battle of the creative industries against copyright infringements in the online world.

SUMMARY

In September 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) suspended proceedings in a widely-publicized case concerning YouTube’s liability for copyright infringing user-uploaded content and referred a series of questions regarding the interpretation of several EU copyright provisions to the CJEU for a preliminary ruling. A few days later, the BGH also suspended proceedings in five other high-profile cases concerning the liability of the file hosting service uploaded.net for user files containing copyright infringing content and submitted the same questions again to the CJEU.

Previous rulings by the CJEU have addressed both the application of the safe harbor principle set out in EU E-Commerce Directive 2000/31/EC, which shields hosting providers from liability for hosted unlawful third-party content (see, for example, eBay/L’Oreal; Netlog/SABAM; and Scarlet/SABAMof which they have no actual knowledge and, separately, the extent of infringement of copyright by hosting of, or linking to, copyright infringing third-party content under the EU Copyright Directive (See GS Media/Sanoma; Filmspeler; and The Pirate Bay). But it is still unclear under which conditions the providers of the various online platforms that store and make available user-generated content, can rely on the safe harbor privilege applying to hosting providers to avoid liability, or whether they must not only take down the infringing content when they obtain knowledge of such content but also compensate the rights holders of such content for damages for copyright infringement.

The questions that the BGH submitted to the CJEU aim to clarify these uncertainties by bringing together the different requirements established by the previous CJEU rulings for (i) affirming a direct copyright infringement by the online platform providers under the EU Copyright Directive and (ii) denying the application of the safe harbor privilege as well as the legal consequences of such a denial (such as the extent of liability for damages). The CJEU will have to consider the differences between the YouTube and uploaded.net business models. The CJEU will hopefully provide much clearer guidelines on key issues such as:

  • to what extent can providers of online services engage with the user content hosted by them;
  • which activities will trigger a liability for copyright infringement irrespective of actual knowledge of a specific infringement;
  • whether they must actively monitor the content uploaded by users for copyright infringements (e.g., by using state-of-the-art efficient filter technologies) to avoid damage claims by rights holders.

In addition, we expect these cases to have an effect on the interpretation of the new Art. 13 of the revision of the EU Copyright Directive that will likely be adopted by the EU legislative institutions in the second quarter of 2019. The current trilogue negotiations among the EU institutions indicate that, under such new Art.13, providers of online content sharing services will be directly liable for copyright infringements by content uploaded to the platform by their users and will not be granted safe harbor under the EU E-Commerce Directive. The providers would then have to ensure that content for which the providers have not obtained a license from the respective rights holders for use on their platforms cannot be displayed on their platform. This means that the providers would have to monitor all content files when uploaded to their platform, making filter technology mandatory for the majority of the platforms (see our previous Client Alert on the draft amendment to the EU Copyright Directive).


Continue Reading Time to Hit Pause: Copyright Infringement on User Generated Platforms – When Is the Platform Provider Liable for Damages?