On 28 May 2021, the German Copyright Reform Law (“Law on the Adaptation of Copyright Law to the Requirements of the Digital Single Market”) was passed. It transposes the Digital-Single-Market Directive (EU Directive 2019/790 of 17 April 2019), as well as the Online-SatCab Directive (EU Directive 2019/789 of 17 April 2019) into national law. What started as part of the "Digital Single Market" strategy in September 2016 will thereby come to an end on 7 June 2021, when the most comprehensive reform of German copyright law in two decades enters into force. Just in time for the transposition deadline, this marks another milestone on the road to a European, digital single market. The newly created Copyright Service Provider Act takes effect a little later on 1 August 2021.
What does the reform entail?
The reform targets platforms which publish the content of their users, such as Facebook, Instagram, YouTube, Twitter, Twitch and TikTok. It establishes their direct liability for copyright infringing content, uploaded by their users without authorisation. Such platforms are now obliged to acquire licences for any copyrighted content that might be published by their users. Copyright proprietors are to be awarded a direct remuneration claim against the platforms in exchange for such a license. Content that is not covered by such a licence must be blocked previous to it being uploaded, or removed immediately afterwards. Only start-ups and small companies are exempt from this comprehensive blocking obligation.
Exceptions are provided for the use of copyrighted works in the context of quotations, caricatures, parodies or pastiches, as well as, for the non-commercial use of small amounts of content (i.e. 160 characters, 125 kilobytes or 15 seconds). In contrast to the underlying directives, this de minimis exception does not apply to content from a live event or an unreleased film for the duration of the broadcast and as far as the rights holder requires it to be blocked.
Furthermore, press publishers must now receive an appropriate financial share when platforms display even just an excerpt of their journalistic content (e.g. accompanying a link to the entire article).
What does this mean in practice?
Despite past assurances from the German government that the use of upload filters would not be necessary to achieve this goal, it is difficult to imagine implementation without them. While the introduction of upload filters is not explicitly provided for in the law, it will be factually impossible for platforms to comply with their new comprehensive obligations without the help of such automated procedures. Whether the reform actually lives up to the claim made by Christine Lambrecht, the Federal Minister of Justice, that it will make German copyright "fit for the digital age", or whether the fears of “internet censorship” voiced by many critics will prove true, remains to be seen.
"By transposing the biggest European copyright reform of the last twenty years into German law, we are making copyright law fit for the digital age. The focus of the draft is the new Copyright Service Provider Act, which regulates the copyright responsibility of upload platforms such as YouTube or Facebook. Our draft provides for a fair balance of interests that will benefit creators, rights users and users alike." Christine Lambrecht, Federal Minister of Justice