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Germany has fully implemented the DSM Directive, with Article 17 entering into force on 1 August, other provisions on 7 June
Procedure:
The German Justice Ministry presented multiple draft versions of the implementation law based on several rounds of public consultation. Parliament held two plenary debates and an expert hearing on the bill.
Article 17:
Germany has introduced ex-ante user rights safeguards against the blocking of uses under copyright exceptions through the concept of “presumably authorized uses”. Licensed uses or uses of public domain material are not awarded ex-ante protection, but ex-post measures against misuse are intended to discourage false copyright claims. Platforms must give access to data on their content moderation practices to researchers. Users’ organisations are awarded a collective redress option for injunctive relief against platforms that repeatedly block legal uploads. The platform definition is somewhat sharpened by including the criterion of “competing with licensed services for the same audience”. Platforms with yearly revenues below 1 million are presumed exempt from the filtering obligation.
Other:
Germany implemented the new educational exception by broadening the scope of its pre-existing education exception. The amended education exception subjects certain uses that were previously excluded from its scope of protection to license availability. Most uses are subject to compensation.
Germany has implemented the public domain provision.
Despite the fact that a proposal to categorically exclude headlines from the scope of protection of the press publishers’ right has been rejected in the legislative process, the new right is subject to all of the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications; it is clarified that the right does not apply to private uses and non-commercial uses by individual users, to acts of hyperlinking nor to the use of individual words and very short excerpts of press publications; it is clarified that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to all the exceptions and limitations to copyright laid out in the national law. Furthermore it is clarified that the right does not apply to the use of the facts contained in the press publication.
Bonus:
Germany was the first Member State to present a system of ex-ante user rights safeguards.
In addition, it used this legislative initiative to strengthen some user rights beyond what was required by the DSM Directive:
- The text and data mining exception for scientific research also applies to individual researchers. Notably, this exception also includes the right to make available to third parties the resulting copies for joint research or quality monitoring, but because this act (contrary to the TDM reproductions and extractions) is subject to compensation, it might turn out not be so useful.
- Introduced a standalone exception for caricature, parody and pastiche.
The copyright directive has been particularly controversial in Germany with mass street protests accompanying its adoption. While the German government voted for the directive in Council, it promised to try to avoid the use of upload filters in its national implementation.
While the implementation still relies on upload filters, Germany has adopted the most sophisticated system of user rights safeguards against overblocking to date. The government published three drafts subject to multiple rounds of consultation before sending the bill to parliament. The provisions on exceptions and limitations largely meet the requirements of the Directive.
Local partners: Our local partners have been Gesellschaft für Freiheitsrechte e.V. & Wikimedia Deutschland
For more information please see our implementation tracking page for Germany.
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