September 8 2003 Copyright Act Revisions a Mixed Blessing for Entertainment Industry Noerr PartGmbB | Tech, Data, Telecoms & Media - Germany Tech, Data, Telecoms & Media Legislative Process Revisions Right of Making Available to the Public Amendments to Copyright Exceptions and Limitations Provisions Amending Copyright Protection Increased Performer Protection Legislative Process The legislative process to implement the most urgent parts of the EU Directive on Copyright in the Information Society (2001/29/EC) into German law came to an end on July 11 2003. Following highly contentious draft bills (the Federal Department of Justice issued the first draft on March 18 2002), multiple public hearings and a flood of comments by lobbyists and experts - including newspaper advertisements by publishers in opposition of the intended revision of the German Copyright Act - the two Houses of Parliament finally agreed on the last critical issue concerning the private copying exception. The revised act entered into force on September 13 2003.The implementing act does not purport to be conclusive. Instead, German legislators, taking into account the tight deadline given for implementation (December 22 2002), decided to follow a two-fold approach in implementing the directive. The first, now finalized step covers only top-priority regulations. In a second bill, German lawmakers plan to introduce further changes to German copyright law regarding other information society issues, such as the use of electronic press reviews.RevisionsA number of amendments have been made to the Copyright Act. The most important changes focus on four central points: the introduction of the right of making available to the public; amendments with respect to exceptions and limitations of the reproduction right and of the right of making available to the public; provisions amending copyright protection; and increased protection with respect to performers. These amendments result from Germany's implementation of Article 5 of the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty into national law.Right of Making Available to the PublicThe new right of making available to the public in Section 19a of the act corresponds almost literally to Article 3.1 of the directive. German copyright law now explicitly provides that the author is granted an exclusive right to control any electronic communication to the public, in particular the right of making available to the public. Pursuant to Article 3.2 of the directive, performers (amended Section 78 of the act), phonogram producers (amended Section 85 of the act), broadcasters (amended Section 87 of the act), and film producers (amended Section 94 of the act) are equally granted the right of making available to the public.Amendments to Copyright Exceptions and LimitationsWhile German copyright law had recognized the right of making available to the public prior to the reform, the amended exceptions and limitations to the reproduction right and the right of making available to the public introduce substantially new provisions. Article 5 of the directive sets out a list of exceptions and limitations which member states must (Article 5.1) or may (Articles 5.2 and 5.3) implement into national law.The mandatory exemption from the reproduction right for temporary acts of reproduction (Article 5.1 of the directive) has been enacted as the new Section 44a of the Copyright Act, which again implements the directive almost word for word.The new Section 52 of the act governs the exceptions to the rights of reproduction and making available to the public in relation to teaching and scientific research. Based on this provision (resulting from Article 5.3(a) of the directive), published small parts of a work, small works, or newspaper or magazine articles may be made available to the public without the author's approval for the purpose of illustration with respect to teaching or scientific research at qualified schools, if necessary for the particular purpose and to the extent justified by the non-commercial purpose. However, there are two limitations to this exception. In accordance with Section 52a(2) of the act, the making available to the public of school books continues to be subject to the author's or publisher's consent. With respect to motion pictures, this exception does not apply until two years after the release of the film. Due to the controversial nature of Section 52a, this provision is subject to review in the next three years; in accordance with Section 137k of the act, its application has been (temporarily) limited until December 31 2006.However, another amendment has triggered even more legal discussion - the new Section 53 of the act. The Mediation Committee of the Houses of Parliament was called in order to resolve a disagreement with respect to the private copying exception. While Article 5.2(b) of the directive specifies that member states may stipulate exceptions or limitations to the reproduction right for private non-commercial use, the most debated issue concerned the question of whether digitally reproduced copies of a work must have a legal source. A compromise was finally reached allowing private copying only if the copy is made from sources which are not evidently illegal. In general, Section 53 now provides for the same treatment of private copies regardless of whether the copy is made on paper or on a computer hard drive. Moreover, this provision also stipulates that such copies may be made by a third party if they are free of charge; therefore, the digital sending of copies remains legal, unless a fee is charged.Provisions Amending Copyright ProtectionThe revised act incorporates protective provisions in respect of technological measures and rights management information in Sections 95a and following. Section 95a implements almost literally Article 6 of the directive regarding the protection of technological measures (copy protection mechanisms and digital rights management systems). However, in order to safeguard exceptions to copyright, Section 95b of the act grants the beneficiaries of such exceptions (listed in detail in Section 95b(1)) the right effectively to enforce their claims. Thus, a user of technological measures within the scope of Section 95a must make available to the beneficiary of a copyright exception appropriate devices in order to ensure that that beneficiary is able to make use of the applicable exception, provided that the beneficiary has legal access to the work.Section 95b of the act thus limits the scope of the provisions protecting technological measures. The German legislators went far beyond the standards under Article 6.4 of the directive, which, for instance, considers voluntary measures undertaken by right holders in this respect as sufficient. Arguably, the new Section 95b sets too great a burden for the use of technological measures to provide effective protection for the entertainment industry. The costs of developing technological measures and ensuring access for beneficiaries of copyright exceptions reduce the incentives to install technological measures, and the entertainment industry is also subject to certain labelling duties under Section 95d.Increased Performer ProtectionBased on the WIPO Performances and Phonograms Treaty, the revised German Copyright Act now grants substantially more protection for performing artists. Sections 74 to 76 now provide a variety of moral rights for performers. Further, the performing artist is given exclusive exploitation rights with respect to the use of the performance in Sections 77 to 80 (by contrast, performer rights were previously designed as mere 'consent' rights). As a result, the performing artist may now grant third parties licences regarding his or her performances. In addition, Section 80(1) of the act sets forth a general rule with respect to performances carried out by more than one performer. As authors, performers now have joint exploitation rights if it is impossible to exploit separately the share of one performer. For further information on this topic please contact Stefan R Oeter at Nörr Stiefenhofer Lutz by telephone (+49 30 2094 2000) or by fax (+49 30 2094 2094) or by email ([email protected]).