Copyright law reform: Germany considers upload filters

The Federal Ministry of Justice and Consumer Protection (BMJV) has published the second discussion draft on the implementation of the EU DSM Copyright Directive. The plans include, among other things, regulations on the copyright responsibility of upload platforms.

The reform is intended to modernise aging copyright law in line with the digital age and to adjust the rights and obligations of authors, platform operators and users.

"The DSM Directive represents one of the most extensive legislative tasks in copyright law in recent years for the German legislator," said Dr. Nils Rauer, copyright expert at Pinsent Masons, the law firm behind Out-Law. "The legislator devoted only a part of the implementation tasks it had been given in the discussion draft published in January; it is now completing this with the second part of the discussion draft. This is no less controversial in legal terms."

With the modernisation of copyright law, the BMJV said that it wanted to strengthen the rights of creative people and give rights holders a fair share of the revenues that are generated when copyright-protected content is uploaded to platforms by users without a licence. At the same time, the freedom of communication and opinion of users on the internet is to be safeguarded.

At the beginning of the year, the BMJV presented a first draft for discussion on the implementation of the EU copyright directive. It was primarily devoted to the implementation of the new press publishers' right, the new regulation on publisher participation and, in particular, new exceptions to copyright, such as on text and data mining.

Rauer said: "In the second draft that is now available, the legislator has gone a long way towards a comprehensive approach. Central to this are the changes in copyright contract law, the introduction of extended collective licences and, in particular, the implementation of the new liability regime for service providers for the sharing of online content in a completely new law, the Copyright Service Provider Act."

The new law places a greater onus on platforms to remove copyright-protected content uploaded by users. Platforms will also be obliged to acquire certain licences for the public reproduction of copyright-protected works. This can take the form of collective licences via collecting societies. The draft therefore creates a general provision for collective licences with extended effect.

"Especially against the background of the legal-political but also social debate on upload filters, especially the now chosen implementation of Article 17 of the Directive on Copyright in the Digital Single Market in a separate law should provide for further discussions," Rauer said. "In view of the complexity, the step to create a comprehensive regulatory complex of its own is very welcome. The legislator is not sparing with proposals for solutions to reduce the use of the controversial upload filters as far as possible."

Upload filters have been at the centre of the public debate on the EU directive for years. These automated systems can check and reject content uploaded by users if they detect a possible copyright infringement. According to experts, however, such filters could also reject legitimate works of parody and pastiche by mistake, which could lead to so-called "overblocking" and restrict the freedom of users.

In order to avoid this, the draft provides for users to receive explicit legal permission to use content for caricatures or parodies. Platforms should be obliged to allow users to mark their contributions as caricature, parody or pastiche. This content should then not be blocked.

In addition, the draft law provides for a de minimis limit of 20 seconds of sound or video, 1,000 characters of text or a data volume of 250 kilobytes for photos and graphics. In cases of non-commercial use falling below these limits, upload filters would not have to become active.

"This regulation is certainly worth noting," Rauer said. "It offers quantifiable parameters that allow filters to reliably recognise whether or not a permitted petty use is involved. Although the legislator is addressing concerns that upload filters would place undue restrictions on the internet, this is a bold, if not even daring step from a European law perspective, since Article 5 of the EU Copyright Directive contains a conclusive list of restrictions."

If protected content is not licensed and its use is not permitted by law, the platform operator is obliged to remove the corresponding content or block access to it upon complaint by the rights holder.

In cases of doubt and in the event of disputes between platforms, right holders and users, complaint procedures as well as out-of-court dispute resolution methods are proposed.

Interested parties will be given the opportunity to comment on the draft discussion by the end of July 2020. These comments will be published on the BMJV website. The BMJV intends to take forward proposals for reform more formally once the comment period has expired.