Recently, there has been an interesting development in the liability of Internet intermediaries in Germany, and I will comment here in this text. The “Act on Copyright Liability Online Content Sharing Service Providers” began to apply on August 1, 2021 in the country.
This act is a German attempt to deal with the controversy generated by the approval in 2019 of the new European directive on copyright, specifically with article 17. For those who do not know, article 17 of Directive (EU) 2019/790 says that online content sharing providers need permission from rights holders to make copyrighted content available to the public. Online content sharing service providers are those who provide public access to copyrighted content that is made available by their users. For example, YouTube and social media are classified here. If authorization is not granted, providers will be responsible for unauthorized sharing of copyrighted works, even if they have been published by third parties (for example, their users). These providers may be released from liability if they demonstrate that:
(1) made all effort to obtain permission from the author of the work;
(2) made all effort to ensure the unavailability of specific works for which rights holders have provided service providers with relevant and necessary information; and
(3) acted expeditiously, upon duly substantiated notification of the copyright holders, to disable access to the notified works.
Article 17 of the directive on Copyright has been seen by many European activists as a way of enforcing monitoring of what users are posting on platforms. As this article is aimed at reaching large commercial platforms, this practically induces the use of automated content filtering tools, popularly known as upload filters, such as YouTube’s Content ID.
The directive on Copyright forced European countries to pass or reformulate their national legislation within two years, implementing its provisions. In this context, Germany has decided to implement the provisions related to article 17 in a new law separate from its national copyright law, the such Act on Copyright Liability.
The act adopts the concept of “uses presumably authorized by law”, ensuring that there is no automatic blocking of content through the use of upload filters. To fall into this presumably authorized category, content must meet the following cumulative criteria:
(1) the use must consist of less than 50% of the original copyrighted work (except for images, which can be used in full);
(2) the use must combine parts of the protected work with other content; and
(3) the use must be minor (less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics and in such a way as not to generate significant revenue), or have been flagged by the user when uploading to the platform as pertaining to a copyright exception.
Of course, copyright holders can request a legality review of such uses, but platforms must keep the uploads online until the complaints are passed for human review.
Another interesting point is that the act provides that researchers should be able to explore the consequences of upload filters by granting access to data by providers.
As Germany is the biggest market in the European Union and German law is the first to contain a tangible mechanism that can be implemented by platforms, it seems plausible that it will eventually become a model for dealing with Article 17 of the directive on Copyright for the entire region.
Now we have to monitor how the legislation will be applied on a day-to-day basis, as well as the other countries of the European Union will be influenced by it.
