eco on the German Draft Law for New Copyright: Upload Filters and Requirements for Platform Providers Remain Disproportionate

The Association of the Internet Industry has criticized the draft law presented yesterday by the German Federal Ministry of Justice (BMJV) for the transposition of the EU copyright reform. The draft has not been calibrated with the German Federal Ministry of Economic Affairs and Energy (BMWi), puts technical filters back in the spotlight, and still contains impracticable regulations for service providers. Among other things, platforms are to be obliged to put content online that has been reported by a rightholder but flagged as licensed by users. If the complaint procedure reveals that the content is unlawfully flagged, service providers will be obliged to pay the corresponding licence fees. However, if content is reported by rightholders only after uploading, the companies are required to block this content. If the blocking is unlawful, the service provider can also be sued for injunction.

eco Chair of the Board Oliver Süme has the following to say regarding this development:

“The BMJV’s proposal does show that the ministry is making serious efforts to reconcile the interests of affected parties. For example, what is to welcomed in the new draft is the fact that the strict limitation of only eight words was waived for the ancillary copyright law. Nevertheless, the draft still places too great a burden on platform providers and doesn’t avail of the leeway given to prevent upload filters. An unequivocal rejection of upload filters is now finally needed; these are neither in line with the e-Commerce Directive nor with the Charter of Fundamental Rights. Just why the welcomed exemption for ‘pastiches’ – more common than memes – is partially withdrawn is beyond comprehension; in so far as platforms have to allow them, but at the same time these will become subject to licensing. These requirements are completely disproportionate and once again confront the companies with great legal uncertainty.”

The deadline for transposition of the copyright reform is 7 June 2021. In its latest statement published at the end of July, the Association of the Internet Industry underlined the critique it had already voiced repeatedly during the development of the directive.

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