eco on the German Copyright Service Provider Act: Call for an Unequivocal Rejection of Upload Filters

In June, the German Federal Ministry of Justice and Consumer Protection (BMJV) published a discussion draft on a Second Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market. With the related Act, the controversial Art. 17 of the EU Copyright Reform (DSM Directive) is also to be transposed into German law. The deadline for the transposition of the copyright reform is 7 June 2021. In a statement just published, the Association of the Internet Industry underscores the criticism repeatedly voiced throughout the time of the Directive’s development: namely, that upload filters are not in line with the E-Commerce Directive and the Charter of Fundamental Rights.

eco Chair of the Board Oliver J. Süme has the following to says:

“Even though the BMJV’s proposal shows that the ministry is making serious efforts to reconcile the interests of the affected parties, it still focuses too much on compulsory licences. It could be years before its compatibility with fundamental rights is finally clarified, during which time the Internet as we know and use it today could change fundamentally through its implementation. We need an unequivocal rejection of upload filters!”

For eco, the present draft confirms that, despite critical deliberations and statements on the part of the BMJV, upload filters will not be excluded and become obsolete with the German transposition of Art. 17 – even for smaller providers:

“The flagging of authorized uses by the uploading user and an associated transfer of liability may make upload filters seem superfluous at first glance. However, since according to Section 12 of the draft German Copyright Service Provider Act, content is to be blocked whose pre-flagging is ‘obviously incorrect’, this is somewhat of a placebo effect”, says Süme. “At the very least, the biggest problems with upload filters would be eliminated if the briefest of excerpts – as listed in Section 6 of the Act under mechanically verifiable uses authorized by law – were not subject to the licence obligation”.

For eco, the draft thus falls far short of the message conveyed in the protocol declaration for the Council decision, in which Germany stated that upload filters would be largely dispensed with in the transposition. In addition, the decision as to whether content is or is not authorized, and the corresponding responsibility, remains with the operator, who faces the risk of injunctions and claims for damages and must bear the cost risk of any legal proceedings.

You can read eco’s detailed statement on the German Federal Ministry of Justice and Consumer Protection’s discussion draft on a Second Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market here.