German Article 17 implementation law sets the standard for protecting user rights against overblocking

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A practical approach to protecting users' rights
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Today the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The law still needs to be confirmed by the Bundesrat before it can be signed into law by the President, but it is not expected that the law will undergo any more changes during that process. As we have explained here before, the German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of Article 17 of the directive. And while the discussions in the Bundestag have led to a number of changes to the text of the law, the key mechanism underpinning the government proposal for implementing Article 17 has emerged essentially unchanged. In addition, the discussion in the Bundestag has resulted in a number of substantial improvements in other parts of the law. 

Presumably legitimate uses

Once signed into law, the implementation of Article 17 will be the first one that contains a practical mechanism designed to ensure that the use of upload filters does not result in the blocking of user uploads which do not infringe copyright. The need for such an ex-ante mechanism arises from Article 17(7) and has also been stressed by the Commission at various points in the past

In order to achieve this, the German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. For an upload to qualify as “presumably authorised by law”, it needs to fulfil the following cumulative criteria:

  • The use must consist of less than 50% of the original protected work,
  • The use must combine the parts of the work with other content, and
  • The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.

If these conditions are met, the use is considered to be “presumably authorised by law” and cannot be blocked automatically. Rightholders can still challenge the legality of such uses but platforms are required to keep the uploads online until those complaints have been reviewed by the platforms (there is an exception that allows “trusted rightholders” to request immediate removal if they consider the use evidently infringing and commercially harmful). 

This mechanism had been the target of massive criticism from rightholders throughout the parliamentary debate and it is welcome to see that the Bundestag has had the courage to hold the line here. The version of the law adopted today makes one small concession to rightholders. It now specifies that the “presumably authorised by law” mechanism does not apply to “the use of cinematographic works or videos until the end of their first public broadcast, in particular during the simultaneous broadcast of sports events, provided that the rightholder requests this from the service provider”. This change addresses concerns expressed by sports associations who argued that allowing people to share 15 second clips of sports events during an event would ruin their business model. While this seems highly dubious, the exception is so narrow that its impact on legal uses will be fairly minimal. 

Other improvements

Otherwise, the changes made by the Bundestag are decidedly to the positive and many of them address issues that we identified in our statement on the occasion of the expert meeting of the Legal Affairs Committee

  • Within the scope of the Article 17 implementation, all copyright exceptions except those for pastiche, parody and caricature remain unremunerated (the fact that citations were originally supposed to be remunerated had drawn criticism from a large group of academics)
  • Also in the context of the implementation of Article 17, service providers will not be liable for damages resulting from decisions that they take when adjudicating complaints. This removes an incentive for platforms to side with rightholders when adjudicating user complaints.
  • The provision allowing collective redress against structural overblocking by platforms has been further strengthened. These provisions also provide the basis for claiming  damages from originators of false copyright claims.
  • The version adopted today also includes a new provision requiring platforms to provide scientific researchers access to data about the use of automated content recognition technology, allowing for a minimum level of transparency. 
  • The exception allowing caricature, pastiche and parody, which is newly introduced into the German Copyright Act, will not be limited to only allow uses “justified by their purpose” (such a limitation was included in the government proposal and would have contradicted existing EU case law).
  • All of the exceptions for education and research, which were previously set to expire in early 2023, will now be permanent.
  • The Bundestag also clarified that a rule that would have excluded all written works younger than 30 years from being considered to be out of commerce now only applies to written works that have been published by a publisher.

Setting the standard

These changes mean that the German implementation law sets a new standard for the implementation of the DSM directive. This is especially true for the implementation of Article 17. With the Commission having missed the chance to issue guidance for the member states in a timely manner, other member states who seek to implement Article 17 in a fundamental rights-compliant way should look at the German law for guidance. 

A similar logic will be at play for platforms. The German law is the first law that contains an actual mechanism that they can implement. Given that Germany is the largest market in the EU it seems plausible that they will apply mechanisms based on the German law across the EU. Here the fact that all other member states have so far limited themselves to restate the text of Article 17 of the directive means that mechanisms that comply with the German law will also be in compliance with the other implementations passed so far. As a result it would not be surprising if the German law turns out to be the real implementation guidance. 

In the end the German implementation will also be the standard that the CJEU will have to consider when judging if Article 17 can be implemented without violating users’ fundamental rights. Here it remains to be seen if what the German legislator has come up with is good enough to meet the standards of the EU Charter of Fundamental Rights.

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