Copyright Reform: Adapting Copyright Law to the Requirements of the Digital Internal Market

The need to reform copyright law to adapt to increasing digitization has been discussed for many years. Due to the deadline for implementation of European requirements, which expired on June 7, 2021, there is now movement on the issue. With the approval of the German Federal Council ("Bundesrat"), the German Parliament ("Bundestag") has passed a comprehensive amendment that modifies the existing Copyright Act ("UrhG") as well as the Collecting Societies Act ("VGG") and passes the new Copyright Service Providers Act ("UrhDaG"). The amendments come into force on June 07, 2021 (UrhG and VGG) and on August 01, 2021 (UrhDaG).

The new UrhDaG regulates the copyright responsibility of so-called service providers such as YouTube or Facebook. In the future, they will be obliged to make the best possible efforts to acquire licenses for the content on their platforms. If such a license is not available, the platform operators are obligated under certain conditions to block the unauthorized public reproduction of a work from the beginning or to terminate it subsequently. For this purpose, the use of so-called upload filters is possible, i.e. software that can automatically check the rights to the content when it is uploaded. It is important to note, however, that the extended obligations of platform operators do not release companies that distribute content from their own liability.

To protect freedom of expression and communication on the Internet, the UrhDaG defines certain limits within which the service provider may generally assume that the platform content is permissible, e.g., for uses up to 15 sec. of an audio track or uses up to 125 KB per photograph. In these cases, the copyright responsibility of the service provider is initially excluded in the event of a reproduction. This can only change after a complaint by the author.

Uses of copyrighted works for the purpose of caricature, parody and pastiche are now expressly permitted by a newly inserted provision. This adjustment was necessary due to ECJ case law on the use of audio fragments. The use of reproductions of visual works (e.g. paintings) whose copyright term has expired will also be permitted in the future.

The comprehensive reform addresses the requirements of the digital age. The actual effects in practice remain to be seen. Overall, however, it can be assumed that copyright infringements will be more easily detected and thus more consistently prosecuted through the use of automated upload filtering. However, since the increased use of service providers does not eliminate the responsibility of the posting users, the rights to content should continue to be clarified prior to use.