Tough times for platform operators? - Federal Government approves extensive reform of German copyright law

On 3 February 2021, the Federal Cabinet approved a draft law to implement the "biggest European copyright reform of the last twenty years" by aligning the German copyright law with the digital single market’s requirements. The adaption of the - outdated - German copyright law to the current digital era will properly mix up the platform operators’ liability for infringements of copyrighted content, but also provides a lot room for interpretation, which will certainly keep politics and German courts on their toes for some time to come.

At the heart of the planned reform is the new standalone draft Copyright Service Provider Act (“Urheberrechts-Diensteanbieter-Gesetz”), implementing article 17 EU Copyright Directive. Under the draft law, platform operators are fundamentally liable for copyright infringements available on their platforms. The host-provider privilege and the previous German case law’s distinction between their all-around liability as offender or their liability limited to injunction as interferer will no longer apply. Platform operators are therefore liable if the use of copyrighted content is not permitted by law or if they are not covered by scope of the draft law, e.g. because they merely operate an online marketplace.

In future, platform operators can only exculpate from liability for copyright infringements if they meet specific duties of care. They are in particular obliged to acquire licences to the copyrighted content. Unlicensed or legally not permitted content may not be available on the platforms for the time being. It will be required to verify in advance whether a blocking request (“Sperrvermerk”) made by the rights holder for this content, exists. Carrying out such verification checks without automatic upload filters will be hardly feasible. The notorious upload filters will therefore not generally be ruled out, but platform operators may, however, limit their application by concluding as many license agreements as possible in advance. This topic contains fuel for conflict which will certainly not only be put on the table during the upcoming deliberations of the German Bundestag and Bundesrat, but could also require further revisions following the European Court of Justice’s pending decision on the compatibility of upload filters with the EU Fundamental Rights Charter in the autumn.

Another point that has been the subject of lively debate in the recent months is the initial permission to publish "presumably permitted" (“mutmaßlich erlaubt”) content that can be only subsequently removed if the rights holder files an objection against such content with the platform operator. Content is "presumably permitted" if it does not exceed a de minimis limit. Where exactly to draw this line has already changed several times. Currently, for example, video sequences may only be up to 15 seconds long.

Although the Federal Government wanted to satisfy as many stakeholders as possible with the draft law, it appears that platform operators in particular need to adjust to many uncertainties that will presumably only be framed by German case law in the coming years.