In view of the implementation deadline in summer 2021, it is becoming increasingly apparent what the transformation of the highly controversial Digital Single Market Copyright Directive (EU/2019/790, hereafter: DSM-Dir.) in Germany could look like. The draft of the Federal Ministry of Justice and Consumer Protection (BMJV) is now available and is - just like the Directive on which it is based - highly controversial, in particular in terms of the possible implementation of upload filters.
Key elements of the draft Act
"Upload filter" is a trigger word for many, which inevitably leads to heated debates around censorship and freedom of speech. The DSM-Dir. does not use this term itself. It does, however, provide for the introduction of regulations for more intensive protection of the legal position of authors and other rightsholders vis-à-vis companies and platform users when their photos, articles or videos are uploaded and distributed on the internet. According to widespread opinion this protection can only be achieved by so-called upload filters, however bearing the risk of “overblocking”.
According to the ideas of the BMJV the implementation of the DSM-Dir. in Germany is to be implemented in particular by introducing a new Copyright Service Provider Act (UrhDaG), which comprehensively regulates the responsibility of platform operators for the content of their users. In future, platforms shall to be subject to concretely regulated duties of care, which oblige them to acquire licenses for copyright protected works as a preventive measure. This shall allow authors to participate financially in the distribution of their works on the internet. Furthermore, the DSM-Dir. provides for a specific catalogue of legally permitted uses (e.g. parodies or so-called pastiches, i.e. remixes, memes, GIFs, mashups, fan art, fan fiction, covers or sampling). No prior licensing is therefore required for these.
De minimis provision
In contrast to the Directive, however, the draft Act also provides for a "minor exception" clause for non-commercial use in social media. According to this, reproductions for non-commercial purposes of a small scale will be allowed, even if they have not been licensed (e.g. up to 20 seconds of a film or sound track, 1,000 characters of a text or photographs with a data volume of up to 250 kB).
If, after all this, the public reproduction of a content is not permitted, the service provider is obliged to immediately remove the corresponding content or block access to it upon notification of the rights holder.
Both, for the use of content for the purpose of pastiches and in cases where the "minor exception" clause is applicable, the service provider must pay the author an appropriate remuneration.
Debate about upload filters
And what about the upload filters? According to the BMJV, they will exist; but within a limited framework. Users are to control themselves, so to speak. A form of "pre-flagging" procedure is envisaged. For example, when uploading content, users should be informed if this post will be blocked for copyright reasons. They should then be given the opportunity to invoke an exception of their own initiative. Content marked in this way should then not be blocked by the platform ("online by default").
The obligation for service providers to inform users immediately of the existence of blocking requests ("pre-check" procedure) is currently causing critics’ ears to prick up. It is criticized that such an obligation can only be fulfilled if the platform actually uses preventive upload filters to detect such content. Advocates of freedom of opinion regard this as a breach of the Federal Government's promise that it would "if possible, dispense of upload filters”.
At the time of the publication of the draft Act, it was said that a government draft would be adopted in autumn 2020. However, this is currently not in sight, in particular in view of the controversies outlined above. One thing is certain: the dispute about the "new" copyright law in the digital single market, and in particular the upload filters, is far from over.