Rightsholders express concerns to the German government on Copyright Directive Art 17 implementation

FIAD - alongside a broad group of right holders in Europe’s creative sectors - wrote to key actors within the German government to express our serious concerns regarding the draft law on the implementation of the DSM Copyright Directive (‘the Directive’) which was presented on 23 November 2020 and is currently being coordinated within the German Government and regarding Article 17 (the ‘value gap’ provision) in particular.

The draft proposal in its current form risks jeopardizing the existing balance between copyright and other fundamental rights to the serious detriment of the creative sector in Germany and indeed across the European Union.

There are numerous provisions in the draft proposal which are not compliant with the Directive nor EU and international law. The draft introduces a new limitation to exclusive rights for the benefit of online content sharing service providers.

This is not included or foreseen in the Directive. It proposes a mechanism for disabling automatic content recognition of ‘presumably permitted uses’ by using purely quantitative thresholds (20 seconds, 1,000 characters, 250 kilobytes, 50% of work) combined with the condition of ‘added other content’ and with the burden of proof completely shifted to right holders. Such a mechanism would constitute a limitation to the exercise of exclusive rights, would create qualifiers that are unsuitable without a specific context. It would not meet the ‘three-step test’ enshrined in both EU and international law.

Furthermore, it would facilitate copyright infringement as well as undermine legitimate licensing and content protection models in ways which unreasonably prejudice the legitimate interests of right holders and conflict with the normal exploitation of their works.

Find the letter in full below: