The grand coalition has agreed on the final details for the copyright reform that has been contested for months. With some changes to the draft of the federal government, the legislative package “to adapt copyright law to the requirements of the digital single market” is to be passed in the Bundestag on Thursday. Meanwhile, the opposition factions of the Left and Greens still have change requests. Associations, especially from the music and film industries, have announced further protests.
According to the amendments formulated by the Federal Ministry of Justice by the government factions of the CDU / CSU and SPD, which heise is online, the concept of “presumably permitted uses” on platforms such as Facebook and YouTube should remain in place. This allows users to mark content as legal to a small extent so that it is not blocked directly by upload filters.
In the case of non-commercial use, the exception applies to audio or video snippets of up to 15 seconds, texts of up to 160 characters and 125 kilobytes of a photo or graphic. The clause also extends to user-generated content that contains less than half of a work by third parties and, in principle, permitted excerpts for the purposes of quotation, caricature, parody and pastiche “combine” with other content.
The use of these user rights should, according to the will of the government, be subject to remuneration for the platform operator for the first time. The coalition parliamentary groups have now restricted this remuneration obligation to legally permitted uses of caricatures, parodies and pastiches. Quotations or the publication of images that fall under the freedom of panorama remain free of charge even if they are distributed via upload platforms.
With this correction, the coalition is taking into account “the criticism from civil society and jurisprudence, according to which the obligation to pay fees for all use of barriers on online platforms, as provided for in the government draft, is too far-reaching. For service providers it also creates a false incentive for over-blocking.”
… but not for live sports
In general, measures such as the use of filters should not lead to legal content uploaded by users not being available. This is where the government factions meet the rights holders: According to Schwarz-Rot, this should not apply to live broadcasts of sporting events, for example. The prerequisite is that the rights holder requests a block from the service provider and provides the necessary technical information.
The publication of even small excerpts from a football game that is still in progress could “jeopardize the monetization of this content, for example on pay TV,” explains the coalition. For a blockade, the right holder must also notify when the first public communication begins and ends. The user should be informed about the lock. In principle, rights holders receive a “red button” to immediately block, in particular, “premium content”.
YouTube & Co. are also in a better position in one case: they are not responsible for the reproduction of allegedly permitted uses during ongoing complaint procedures from rights holders. After the decision on a complaint, the service provider is only liable for damages if it culpably breached its obligations during the procedure. According to Schwarz-Rot, the initially envisaged liability would create a structural incentive for the platform operator to allow complaints from rightholders in ambiguous cases, and thus lead to more blocked content
Consequences for rights holders
If a rights holder repeatedly and incorrectly requests a block, “he must be excluded from the respective procedure for a reasonable period of time”. In addition, in the case of over-blocking “by a registered association whose purpose is directed to the non-commercial and not only temporary promotion of the interests of users”, it can be claimed to cease and desist. Before that, there was talk of associations such as consumer protection organizations, which are listed in the Injunctions Act.
Another new feature is a passage that experts can use to gain deeper insights into the workings of upload filters. Service providers must give them “for the purpose of scientific research access to data on the use of procedures for automated and non-automated recognition and blocking of content”, provided that this does not conflict with the overriding legitimate interests of the operator. He has a “right to reimbursement of the resulting costs in a reasonable amount”.
The CDU / CSU and SPD explain this approach that social media and especially upload platforms are increasingly important for the creative ecosystem and for copyright law. The communication processes between users are said to be “of considerable importance”, among other things, for “forming public opinion”. With filters, the user behavior could be recorded and a pre-selection of content made. Therefore, there is a considerable public interest in creating more transparency about the functioning of the respective platforms.
“Substantial Public Interest”
Schwarz-Rot also follows the proposal of the Federal Council to completely expire the legally permitted uses for teaching and teaching, for scientific research and by cultural heritage institutions. According to this, up to 15 percent of a published work may be reproduced and distributed permanently for non-commercial purposes for teaching purposes as well as for scientific research. With this intranet clause, however, the requirement to report to the Bundestag on the effects by the beginning of March 2022 remains.
In the envisaged direct remuneration claim, the coalition has limited the group of beneficiaries to authors as well as performing artists and photographers. It does not exist, for example, if a creative person grants everyone a simple right of use free of charge, for example via a Creative Commons license. Corresponding claims can only be made through collecting societies. They can request information from the service provider about the use of the platform that is subject to remuneration.
The main part of the reform, the “Copyright Service Provider Act”, is now to come into force on August 1st, a few weeks after the deadline for implementing the relevant EU regulations.