As an interdisciplinary team of communication and legal scientists, we have analysed the claims and wishes of individual interest groups and various stakeholders. In this blog post, we aim to trace which groups were able to influence the legislative process in accordance with their interests and positions.
By 7 June 2021, the Federal Republic of Germany must transpose the Digital Single Market Directive (DSM Directive) into national law. Article 17 (originally Art. 13) of this Directive provides for the introduction of upload filters as a protection against copyright infringements. Fundamental rights concerns about the introduction of these filters, particularly the effects of possibly curtailing freedom of expression and information, have led to action for annulment by Poland against Art. 17 DSM Directive before the ECJ and in spring 2019 to large demonstrations in Germany against the adoption of this Directive. Although, with the Copyright Service Providers Act German implementation is on its way, no similarly loud criticism has been heard. In the legislative process so far, it is mainly the major stakeholders who have commented on the Act, revealing the triangular relationship between users, platforms and rights holders that is typical for copyright issues in the digital sphere. Users here imply both passive recipients, who do not upload content to video platforms, and active uploaders, who are part of the participatory video sharing culture.
Looking at the statements made in the legislative process and the subsequent procedure, the question arises as to which interest group has been most successful in influencing the current legislative process in line with their interests and concerns.
Need to reform and implementation
To date, platform operators have carried next to no responsibility for their users’ copyright infringements, as long as already uploaded contributions were deleted immediately upon notification of the rights holder. This liability provision dates back to the internet’s early days (Art. 14 of the E-Commerce Directive of 2000) and was intended to provide a legal framework for the internet which at that time was open to innovation and development. Now the DSM Directive is intended to adjust copyright law to the internet’s new technical and social realities, to provide better protection for the rights holders and to standardise copyright protection in the single market. To this end, platforms are now themselves liable as culprits for their users’ copyright infringements. If no licence is available, platforms can escape this liability by making the best possible efforts to block questionable content, hence as far as this is technically and financially possible, by deploying upload filters.
Despite the Federal Government’s intention and promises from the CDU/CSU as well as the SPD, the ministerial draft bill for German implementation could not be passed without incorporating upload filters. However, the Federal Ministry of Justice and Consumer Protection did manage to implement a number of mechanisms to mitigate any repercussions from their inclusion. For example, sound and film sequences of less than 20 seconds were to be excluded from the filter mechanism in return for de minimus lump-sum payments to the authors. This provision also covered uses in the form of caricature, parody or pastiche. Moreover, in order to avoid ‘over-blocking’, users should be able to mark their upload as legally permitted use (pre-flagging). These mechanisms were supplemented by a new complaints and abuse process.
From statements given to the ministerial draft bill, which came both from large service providers such as Facebook and collecting societies such as GEMA (German performing and mechanical reproduction rights organisation), as well as ‘normal’ users, two camps of conflict result. On one side, rights holders have an interest in concluding licences with platforms without being restricted in their freedom of contract (Art. 2 (1) of the German Constitution) by legal guidelines for the drafting of contracts. On the other side, users and platforms have an interest in making available as much content as possible for free or for a minimum lump-sum payment.
The platform providers’ demands expressed in the statements are of a particularly technical or organisational nature. For example, doubt is cast on the ability to implement the use of upload filters. However, platform providers are also interested in not having to make their own copyright decisions and minimising their liability risk. On the users’ side, mechanisms introduced by the German Federal Ministry of Justice and Consumer Protection were welcomed, but not seen as far-reaching enough to avoid over-blocking. Hence, there was a central demand to supplement pre-flagging with post-flagging so that even in the case of a blocking request after the upload, users could mark their upload as legally permitted use and thus prevent unjustified blocking.
Rights holders argued strongly against the de minimis barriers, which they considered to be contrary to European law. They also called for a restriction on pre-flagging possibilities to ensure effective protection against abuse. They criticised the new barrier provision for parodies, caricatures and pastiches, which was intended by the Federal Ministry as a user-generated content barrier, for being too far-reaching and vague.
Which demands were considered?
On 3 February 2021, a government draft was passed by the German Federal Cabinet and presented to the Bundestag for discussion. Compared with the ministerial draft bill, it contains several significant changes. The de minimis uses were lowered to 15 seconds or 160 words and changed from a barrier provision, which made the use possible without the rights holder’s possibility of objection, to a presumption provision (§ 10). This enables rights holders to take action against de minimis uses and to prohibit them. The flagging procedure has been supplemented by a post-flagging mechanism. Users can now mark uploaded content as legally permitted use within 48 hours, to include cases of blocking requests following upload (§ 11). However, the applicability of this flagging mechanism has also been restricted to uses that comprise less than half of another person’s work (§ 9) and a so-called ‘red button’ has been added (§ 14 (4)). This enables particularly trustworthy rights holders to have contents blocked despite being marked as legally permitted use if they are threatened with particularly high damage, for example in the case of the publication of spoilers. This ‘red button’ can also be triggered for de minimis uses.
Furthermore, the government draft provides for an extension of remuneration claims beyond pastiches to include parodies, caricatures and quotations (§ 5 (2)). In this respect, the draft goes beyond the Directive’s intended claims. Furthermore, the requirements for platforms to obtain licenses have been tightened. Whereas in the ministerial draft bill platforms were not yet obliged to approach rights holders, they must now do so at least for those rights holders who have a large number of rights and are known to them (§ 4).
At first glance, it seems that the German Federal Ministry of Justice and Consumer Protection has considered amendment proposals from all sides and integrated them into the government draft bill. However, on closer inspection it becomes obvious that the user-friendly mechanisms introduced in the ministerial draft bill have been weakened in favour of rights holders. The de minimis barriers have been lowered and flagging restricted to uses of no more than half of a specific piece of work. Where these mechanisms have not been weakened, the payment guidelines have been extended; for example, for the first time remuneration is payable for quotation uses (§ 51 German Copyright Act). At the same time, the requirements for platforms to acquire licences have been tightened which strengthens the bargaining power of rights holders. Beyond that, with introduction of the ‘red button’, a new possibility for rights holders to move quickly and effectively against the misuse of their works has also been introduced. Rights holders have, therefore, managed to influence the legislative process in their favour and enforce their claims.
Accordingly, from the users’ standpoint, the government draft bill is a step backwards compared with the ministerial draft. Even if the German draft is comparatively user-friendly against the background of a more literal implementation of the DSM Directive in France, for example, there are still important points for discussion in the upcoming Bundestag debate. Besides the upload filters’ effects on civil society, the role of the platforms as ‘auxiliary courts’ in the complaints procedure must also be considered.
Any repercussions from the proposed directives on those users who act as uploaders must also be discussed. This interest group in particular was under-represented in the participation process during the legislative proposal.
Looking to Luxembourg, it remains to be seen how the ECJ will rule on Poland’s annulment action and what effect this ruling will have on the legislative process. If the action is successful, it will be interesting to see whether rights holders will still have the ability to enforce their claims.
The blogs published by the bidt represent the views of the authors; they do not reflect the position of the Institute as a whole.