Germany

[DE] Draft bill to implement EU Copyright Directive

IRIS 2020-8:1/13

Jan Henrich

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 24 June 2020, the German Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection – BMJV) published a discussion draft for a “Second Act to adapt copyright law to the requirements of the Digital Single Market”. The draft contains proposals for the implementation of several provisions of the Directive on Copyright in the Digital Single Market (EU) 2019/790 (DSM Directive), which entered into force last year. Among other things, it introduces two new legal instruments into German copyright law with provisions on the liability of platforms which allow users to upload content and rules on extended collective licences. The ministry had published a first discussion draft in January, containing proposals on the implementation of the new EU ancillary copyright and related rights for press publishers. The recently published draft is designed to implement the remaining provisions of the Directive.

In concrete terms, the draft makes provision for the implementation of Article 17 of the DSM Directive as part of a new German Urheberrechts-Diensteanbieter-Gesetz (Copyright Service Provider Act – UrhDaG), which is meant to regulate the copyright liability and due diligence obligations of platforms in relation to content uploaded by their users. It includes the obligation to apply for certain licences for the communication to the public of protected works for limited minor use, such as for user-generated content. Users should also be able to label additional authorised uses as such, while platforms may be obliged to prevent unlicensed and unlawful uses. For disputes between rightsholders, platforms and users, a complaints procedure and an out-of-court dispute settlement procedure should be provided.

The draft also contains a new statutory exception for caricatures, parodies and pastiches to be added to German copyright law. Previous provisions on out-of-print works will be changed and public domain works made more accessible.

As regards copyright contract law, the draft contains changes on matters including reasonable remuneration, the author’s further participation, licence chains and the right of revocation for non-exercise.

The ministry has invited interested parties and associations to submit their opinions via a document which can be downloaded from the ministry’s website.