Where we are in the process
Despite the many controversial issues surrounding the Copyright in the Digital Single Market Directive, the legislation got adopted by the European Parliament on 26th March 2019. One of the most controversial issues was article 13 on upload filters (final number article 17- Use of protected content by online content-sharing service providers).
In the end, the European Parliament opposition to the directive was only a few votes short thanks to the massive street protests in Germany and petitions signed across Europe. The protests were so effective that it compelled the parties in the German government to publicly promise that they would mitigate some of the problems at national level when it comes to implementation of the law.
What can still be achieved
Currently, the German Federal Ministry of Justice and Consumer Protection (BMJV) is holding a public consultation on the implementation of two copyright directives, including the Directive (EU) 2019/790 (Copyright in the Digital Single Market). Opinions can be sent by 6th September 2019 see further details here.
As a general rule, Member States transposing European Directives into national law are bound by the terms of the directive and the result to be achieved, but free to choose the form and methods for the implementation. However, the wording of the directive still leaves some leeway, therefore there are still a couple of things that you can do:
1) Protect collaborative creation
In order to avoid that your favorite platforms become the victims of this legislation it is good to remind the ministry that this directive was meant to regulate certain very specific platforms, namely those content providing services that compete with online audio and video streaming services (recital 62). This is very important as way more things are protected by copyright than audio and video content, for instance software or database. Those platforms that are exempted from the rules, and that were never meant to compete with such streaming services should be clearly excluded. Some of the examples mentioned in the Directive such as online encyclopedias (e.g. Wikipedia), educational and scientific repositories, open source software-developing and-sharing platforms (e.g. Github), cloud services (e.g. Dropbox).
2) Say no to filters and stay-down obligation
Article 17 obliges online platforms to pre-emptively purchase licenses for all possible future content uploaded by users, otherwise they would be liable for copyright infringement. This can be anything copyright protected. In addition, websites will need to do everything in their power to prevent content from being uploaded to their website that a right holder registered with them. This is impossible unless the process is automated by filters. You can help by reminding the Government about their promise not to impose filters, and their public statement in the Council. And you can help to provide examples of your own cases where your uploaded content got removed as an error.
3) Ask for the proper guaranteeing of exceptions and limitations
Article 17, paragraph 7 guarantees that uploaders are able to rely on the copyright exception for parody in every Member States, even if you are in a country where officially it doesn’t exist. At the same time article 17, paragraph 9 also states that the directive can in no way affect legitimate uses, such as uses under exceptions or limitations. It is important that these parts are properly implemented in national law and that it is not merely limited to online content provider platforms mentioning this somewhere in their terms and conditions.
To participate in the consulation and to make your voice heard, send your statement by 6 September 2019 to the following e-mail address: