Because they have not transposed the EU Copyright Directive into national law quickly enough or have done so only inadequately, the European Commission has now initiated infringement procedures against 23 member states. While Germany is not affected by this, numerous companies in Germany also have to struggle with considerable legal uncertainties – as long as the controversial copyright reform is not implemented uniformly in all EU states. At the end of this week, a law will come into force in Germany to implement the upload filters required by the EU directive.
eco – Association of the Internet Industry sharply criticises the Commission for creating a European patchwork of individual national laws with the copyright reform, and thus significantly endangering the EU single market. The eco Association calls for a coordinated and harmonised implementation of the Copyright Directive in Europe, instead of the Commission exerting pressure on individual EU states with the initiated infringement proceedings.
eco Managing Director Alexander Rabe says:
“The Internet knows no national borders and this fact must now finally be taken into account by the EU Commission. Even if the copyright reform is transposed into national law in all EU member states, the result will still be a patchwork of national laws. Companies from all over Europe are thus forced into the role of referees and must decide which content is illegal and needs to be filtered out. This poses the risk of overblocking when upload filters are used – and at the same time means a potentially profound encroachment of freedom of expression and information.”
What does the implementation of the EU copyright reform mean for German companies?
As early as 1 August, German companies must implement regulations on upload filters: Platform providers who allow their users to upload content must conclude licence agreements for the content that can be uploaded to their platform. They must also ensure by means of upload filters that the uploaded content does not infringe any rights of copyright owners, insofar as no exceptions exist for this specific content – as in the case of quotations, critiques, reviews, caricatures, parodies or pastiches – or licences exist.
eco Managing Director Rabe expects legal uncertainties, especially for cross-border companies: “German companies operating throughout the EU may then, in the worst case, encounter up to 27 different national implementations of the Copyright Directive. Moreover, since the Advocate General’s opinion at the latest, it can now be assumed that some national regulations of the EU Member States transposing Article 17 are likely to be unlawful.”
It is precisely this pending ECJ decision on the action by Poland against the controversial Copyright Directive that makes the opening of infringement proceedings even more incomprehensible. Rabe continues: “The current situation and the state of limbo pending the ECJ’s decision are unsatisfactory for all parties involved. The EU Commission has contributed to this by presenting the relevant guidelines late, only on the weekend before the end of the implementation period of the directive. Member States are now being reprimanded and businesses are left alone with considerable legal and planning uncertainty. The EU Commission must now urgently take countermeasures.”