13 Reasons Why the planned §§ 9 ff. Copyright Service Provider Act (UrhDaG) is Flawed (government draft as of 07.02.2021)
by RA Dr. Christian Seyfert, LL.M. (San Francisco, GGU)
The German government has initiated a reform of copyright law in a new draft law based in part on an EU directive. Attorney at law Dr. Christian Seyfert, LL.M. is scheduled to discuss the planned copyright reform with German Federal Minister of Justice Christine Lambrecht (SPD) and several well-known German artists, including Julia Neigel and Peter Maffay, on February 22nd, 2021. Then on February 24th, 2021, Dr. Seyfert will participate as an expert in a meeting of the Cultural Committee of the German Bundestag, where he will discuss the planned copyright reform with members of the German Bundestag and other experts.
In this article, Dr. Seyfert lists his main points of criticism of the German government's planned Copyright Service Provider Act (Urheberrechts-Diensteanbieter-Gesetz, UrhDaG).
Reason #1: §§ 9 et seq. UrhDaG have no basis in the DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019.
The EU Directive does not require §§ 9 ff. UrhDaG. For this reason, the Implementation Acts of other EU countries do not contain any provisions corresponding to §§ 9 et seq. UrhDaG. In this respect, Germany’s national solo effort at the expense of authors and artists is without any basis in European law. The aim of the EU Directive, on the other hand, is specifically to harmonize the copyright systems within the EU.
Reason #2: The German unilateral approach contradicts German constitutional law, Art. 17 Para. 2 of the EU Charter of Fundamental Rights as well as Art. 15 Para. 1 No. 3 and Para. 3 of the UN Social Covenant:
- Protection of copyright by Art. 14 GG:
The financial components of copyrights are protected by the property guarantee of Art. 14 of the German Constitution (Grundgesetz - GG). According to the case law of the German Federal Constitutional Court, Art. 14 GG also protects the "fundamental attribution of the pecuniary result of the creative performance to the author" as so-called "intellectual property" (See BVerfGE 31, 229 (240 f.)). The Constitutional Court also counts the additional copyrights of artists and phonogram producers as property within the meaning of Article 14 GG. See BVerfGE 81, 208 (219) and BVerfGE 142, 74.
- Protection of copyright by Art. 1 (1) GG in conjunction with Art. 2 (1) GG:
The author's moral right is protected by Art. 1 (1) GG in conjunction with Art. 2 (1) GG and the general right of personality protected there.
- Protection of copyright by Art. 5 GG:
The constitutionally guaranteed fundamental rights of freedom of expression, freedom of the press, freedom of reporting by radio and film, freedom of the arts, and freedom of science also contribute to further securing the protection of authors and artists.
- Protection of copyright by Art. 17(2) of the EU Charter of Fundamental Rights:
Art. 17 (2) of the Charter of Fundamental Rights of the European Union explicitly protects intellectual property: "Intellectual property shall be protected." This includes copyright protection.
- Protection of copyright by Art. 15 Para. 1 No. 3 and Para. 3 of the UN Social Covenant:
The UN Social Covenant is an international covenant for economic, social, and cultural rights which a total of 171 states have ratified, including Germany. Art. 15 Para. 1 No. 3 and Para. 3 of the UN Social Covenant reads:
" (1) The States Parties to the present Covenant recognize the right of everyone:
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
(3) The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity."
Reason #3: Sections 9 et seq. UrhDaG create a burden-of-proof rule to the detriment of authors and artists
Such a burden-of-proof rule that is detrimental to intellectual property owners is foreign to the German law system. If the author does not have sufficient evidence, then they cannot refute the "presumed authorised use" of the user, which would be legally presumed by §§ 9 ff. UrhDaG.
Reason #4: Expropriation (a.k.a. eminent domain) of intellectual property to a large extent
The requirements of §§ 9 et seq. UrhDaG are already fulfilled, for example, in the case if a user edits half of several feature films (minus one second each), then submits a video commentary and marks this public reproduction as permitted. In such cases, the service provider is not allowed to block the public reproduction because it is a "presumably permitted use". A block may only take place after a complaint by a rights holder.
Reason #5: Copyright infringements are considered "presumably permitted uses" as long as the author (e.g., due to lack of knowledge of the infringement) does not complain about it (de facto legalisation of copyright infringements).
The online platform operator (service provider) also has the difficult task of locating the respective rights holders, whose names and addresses they will not know in every case. Especially in the case of cinematographic works and musical works, it can be quite difficult to find the names and addresses of the rights holders. In such cases, it is not even possible to inform the rights holders pursuant to § 9 (3) UrhDaG. According to §§ 9 ff. UrhDaG, the online platform operator may not delete the "presumed authorised use" on their own accord. The power to delete is always dependent on a complaint by the respective rights holder. Therefore, countless "presumably permitted uses" will appear on online platforms, although they are obvious copyright infringements in this respect. The service provider is only allowed to delete these on the basis of a complaint.
Reason #6: There is a potential danger for "lawbreaker tourism" into Germany
DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of April 17th, 2019, does not require §§ 9 ff. UrhDaG in terms of content. Other EU countries therefore have not included provisions corresponding to §§ 9 ff. UrhDaG in their copyright laws. A "presumed authorised use" by operation of law therefore does not exist in the other EU countries. Infringers could therefore specifically come to Germany and upload their copyright infringements to platforms in Germany because this is always according to §§ 9 ff. UrhDaG initially a "presumed permitted use". In other EU countries, these would already be—correctly—illegal copyright infringements in their origin.
Reason #7: § 10 UrhDaG constitutes an irreversible compulsory expropriation of the authors and artists
To this extent, authors and artists can no longer defend themselves against the unauthorised use of their created work pursuant to § 10 UrhDaG. 15 seconds of music regularly comprises the entire chorus of a song. Users would then be allowed to combine 15 seconds of a song with other work, even if the composer rejects such a combination. Such a combination of work would then even be permissible, for example, for political propaganda videos or promotional videos for associations. According to the version of §§ 9 ff. UrhDaG, even a complaint by the author would be of no use because § 10 UrhDaG creates a legal ground for permitted use. This would then actually also impair the moral rights of a composer or lyricist.
Reason #8: Authors will be burdened even more in terms of time and costs than ever before
Because §§ 9 ff. UrhDaG initially allow "presumably permitted uses" by operation of law, although the author never actually granted permission for the respective uses of their work, the author must laboriously file complaints against the "presumably permitted uses" every single time. If the author does not have time for these tedious complaints, which must be substantiated and proven in each case, then they must hire a lawyer for this at their own expense. For lack of evidence, the author may even lose these complaint proceedings against "presumably permitted uses", even though they are the copyright owners. If, for example, 10,000 users upload just under half of a work, link it to a comment and flag each as a "presumed permissible use", then the rights holder must laboriously complain 10,000 times in order to have these "presumed permissible uses", which are in fact unauthorised uses of their copyright protected work, to be deleted again. In many cases, authors will not have so much time and money to defend themselves against so many copyright infringements, so that these unauthorised uses will nevertheless continue to be regarded as "presumed authorised uses" by operation of law. In this way, copyright infringements would be de facto legalised in large numbers.
Reason #9: The platform operator (service provider) becomes a substitute judge
The platform operator, who is not a lawyer, may then play the judge of the authors' and artists' complaints in the future according to § 14 UrhDaG. Because there are no independent rules of procedure for this, the non-lawyer online platform operator must then create the rules of procedure for their own platform. This means the platform operator is not bound by law like a judge. For example, they cannot be prosecuted for obstruction of justice or obstruction of justice in office. It would also not be possible, for example, to challenge the platform operator on the grounds of bias.
Reason #10: Start-up service providers and small service providers are not even obliged to block and remove illegal content
See § 7 (4) and (5) UrhDaG. Smaller platforms will then likely be abused for copyright infringements in the foreseeable future.
Reason #11: Further expropriation of authors if they lose several appeal proceedings, possibly only due to lack of evidence.
If an author loses several complaint proceedings, possibly only due to a lack of evidence, then in the future they may not even be allowed to complain at all in other future cases for a certain period of time. See the planned provision in § 18 (3) UrhDaG.
Reason #12: Incorrect labelling of a user as "permitted use", on the other hand, has as such no effect on the user's right to complain in future cases
According to § 18 (5) UrhDaG, a false designation by a user as "authorised use" has no effect on the user's right to complain in future cases. The respective user would still retain own right of appeal for future cases.
Reason #13: No possibility is created for authors and artists to find out the names and addresses of infringers
Under the UrhDaG, users have no obligation to provide their name and address. It will therefore be difficult for the author to take action against the infringers because knowledge of the name and address of the infringer is necessary to start a lawsuit and serve the complaint to the infringing defendant.
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