- A. Overview of Section 18(4) UrhDaG
- B. Open content licences in the legislative process
- C. Implementation options for sharing platforms
- D. Outlook
A. Overview of Section 18(4) UrhDaG
1 Content under open content licences is explicitly taken into account in German copyright law. In addition to the so-called Linux clauses in German copyright law (including Section 32(3) sentence 3 UrhG), the Copyright Service Provider Act also contains a provision in Section 18(4) UrhDaG also contains a provision relating to works "whose use by anyone is permitted free of charge ". In this way, the German legislature takes into account the widespread distribution of content under open content licences such as Creative Commons. These licences are generally designed in such a way that they do not require legislative intervention in order to be effective and enforceable in court . An explicit provision in favour of open content licences is therefore only necessary if a copyright reform makes a certain form of exercising exclusive rights the norm, such as the desire to grant licences for use only in return for payment or only in individual cases.
2 Such assumptions underlie Article 17 of Directive 2019/790 on copyright and related rights in the digital single market (DSM Directive), which the German legislature has transposed into German law with the Copyright Service Provider Act. Article 17 DSM Directive regulates the liability of certain public sharing platforms for copyright infringements by third parties. Service providers within the scope of Art. 17 DSM-RL must endeavour to obtain licences for uploads of protected works by third parties to their services and, under certain circumstances, automatically prevent the upload of certain works or other protected objects at the request of rights holders. Art. 17 DSM-RL therefore assumes that rights holders have an interest in negotiating with the companies concerned companies for the use of their works on their services or, alternatively, to prevent such use. This is not usually the case for content under open content licences if rights holders specifically choose these licences in order to promote the widest possible, unhindered distribution of the content and to waive individual licence negotiations and remuneration .
3 Practical experience with the use of upload filters on platforms such as YouTube or Facebook shows that this can lead to the unjustified blocking of public domain content or works under open content licences.
4 Incorrect blocking of public domain or open-content-licensed content also occurs when filter systems do not sufficiently distinguish between different property rights, such as between the copyright to a piece of music and the ancillary copyright to a sound recording. When music companies report a specific protected recording of a public domain musical work to a service provider for blocking, filter systems sometimes also block other recordings of the same piece of music, even if these were uploaded by the platform users themselves or if the sound recording is licensed under an open content licence.
5 The aim of Section 18(4) UrhDaG is to ensure the unhindered reuse of public domain content or content under open content licences by requiring service providers to prevent the repeated unjustified blocking of such uploads due to alleged copyright infringements. The provision reads as follows:
Section 18 UrhDaG Measures against abuse
(4) Following an abusive blocking request with regard to works in the public domain or those whose use by anyone is permitted free of charge, the service provider shall, in accordance with Section 1 (2), ensure to the best of its ability that these works are not blocked again.
6 The regulation for the protection of content under open content licences makes use of the findings from the complaint procedure under § 14 UrhDaG, which users of the platform can go through if their uploads have been unjustifiably blocked. Even if the use of upload filters pursuant to Section 7 (2) sentence 1 UrhDaG is in principle subject to the condition that content may not be blocked if it does not infringe copyright, the legislator implicitly assumes with regard to public domain and open content licensed content that such unjustified blocking will occur. In this case, Section 18(4) UrhDaG stipulates that service providers must do their utmost to ensure that the same unjustified blocking does not occur again in future uploads once it has become known to the service providers – for example, in the context of a complaint procedure. The standard of care by which the efforts of service providers are to be measured is the same as that for efforts to block copyright infringements, which, according to Section 1 (2) UrhDaG, is based on the state of the art in the industry and the individual capabilities of the service provider.
B. Open content licences in the legislative process
I. DSM Directive
7 In contrast to the Copyright Service Provider Act, its European legal basis, Art. 17 DSM Directive, does not explicitly address the risk of false blocking of content under open content licences . However, discussions about the risk of overblocking, i.e. the blocking of uploads that do not infringe copyright or related rights, accompanied the legislative process from the outset and were ultimately incorporated into the regulatory text in abstract form. The European Commission's draft for Article 17 of the DSM Directive (then Article 13) did not explicitly address the risk of overblocking, but merely provided for an obligation for platform companies to provide their users with a complaint procedure and legal redress options in disputes over the use of upload filters .
8 In the course of the legislative process, the rights of platform users were significantly strengthened.
9 In order to avoid the unjustified blocking of uploads of open-content-licensed or public domain content, rights holders would have to ensure that they only report those parts of works to online platforms for blocking for which they have exclusive rights. However, Article 17 of the DSM Directive does not contain such a clear requirement. The provision is limited to stating that platforms only have to endeavour to block content for which rights holders have provided "relevant and necessary information" (Art. 17(4)(b) DSM Directive) and that rights holders must justify "their request in an appropriate manner" (Art. 17(9) sentence 2 DSM-RL). However, according to Advocate General Saugmandsgaard Øe, the information to be provided should "include proof that they are entitled to the rights to the works or other protected subject matter whose blocking they are requesting, in order to limit the risk of over-claiming".
10 Similarly, Art. 17 DSM Directive does not contain any explicit obligation on platform companies to use only filtering systems that avoid confusion between different property rights, which are often the source of blocking of public domain or open-content licensed content (e.g. confusion between (such as confusion between copyright in melodies and ancillary copyright in sound recordings). Thus, it is left to the Member States to define rules for the protection of public domain or open-content-licensed content in their national implementations of Article 17 DSM Directive.
II. UrhDaG
11 Section 18(4) UrhDaG, which is the only provision of the Copyright Service Provider Act that explicitly addresses open content licences, is itself the result of a controversial debate in the German legislative process. Contrary to what is sometimes assumed in the literature
12 According to Section 8 UrhDaG-E, platform companies should always give users the option when uploading to mark the use of a work as legally or contractually permitted. Contractual permissions also include content under open content licences, where the rights holders have contractually permitted use by any person. According to the discussion draft, the platform companies concerned should According to the draft bill, the platform companies concerned should generally be prohibited from blocking content marked in this way, unless the marking is obviously incorrect (Section 8 (2) UrhDaG-E). Any incorrect markings should only be reviewed retrospectively by rights holders as part of a complaint procedure (Sections 14, 15 UrhDaG-E). In the event of repeated incorrect labelling of uploads, service providers should also be authorised to temporarily exclude users from the labelling function (Section 19 (3) UrhDaG-E).
13 With regard to content under open content licences, the draft discussion paper adopted the weighting of Article 17(7) of the DSM Directive, according to which the incorrect blocking of legal content should be avoided in all cases . However, the proposal met with considerable criticism from the platforms concerned, which did not want to confront users with the question of labelling any third-party content every time they uploaded something and doubted the ability of users to assess the copyright admissibility of their uploads .
C. Implementation options for sharing platforms
14 Companies in the entertainment industry face the challenge of false blocking, as there is no authoritative database of rights information on which to base their assessments. They must largely rely on the accuracy of the information provided by (alleged) rights holders about the content they report for blocking . Even though rights holders are obliged to justify their blocking requests and to limit them to content for which they have exclusive rights, in practice there is a risk of overclaiming, i.e. reporting works or parts of works that are in the public domain or under open content licences.
15 Users who wish to upload this content have the option, at least within the framework of the appeal procedure under Sections 14 et seq. UrhDaG, to reverse false blocking. Section 18(4) UrhDaG makes use of the information obtained in the course of these appeal procedures. If an incorrect blocking of public domain or open content licensed content is lifted as a result of a successful appeal, a human review of the relevant content has taken place and the platform is able to add this content to an "allow list", i.e. a database of verified content whose legal status has been clarified. If the same user or another user attempts to upload the same content again in the future, the entry in the allow list should prevent another automatic blocking.
16 The protective measure provided for in Section 18(4) of the UrhDaG is very conditional, as it only applies if users make active use of the complaint mechanism. In practice, many users will refrain from complaining about false blocks – either because they are uncertain about their right to upload content or because subsequent unblocking seems unattractive given the fast pace of online communication. Nevertheless, Section 18 (4) UrhDaG could have a much greater impact if it were used as a blueprint for industry-wide cooperation to protect public domain and open-content-licensed content. If a platform has classified content as public domain or open-content-licensed in the context of a complaint procedure, it could share this entry in the allowlist with other platforms. Other appropriately qualified institutions could also certify the free reusability of certain content and document it in a joint database of public domain or open content licensed content that all platforms and the general public could access. The feasibility of such a proposal
D. Outlook
17 With its explicit safeguard against the unlawful blocking of content under open content licences within the framework of Article 17 of the DSM Directive, Germany stands alone so far. It is unclear for which platforms this regulation is currently binding. The regulation of information society services, which also includes the services affected by Art. 17 DSM Directive, is generally governed by the country of origin principle. This could lead to the conclusion that only platforms based in Germany would have to comply with the requirements of Section 18 (4) DSM Directive, which would largely render it ineffective. For copyright regulations, on the other hand, the country of protection principle applies, while users of the services concerned can invoke national consumer protection regulations. This could also include Section 18(4) UrhDaG. In view of the case law of the European Court of Justice in Poland / Parliament and Council, content under open content licences must be protected against unjustified blocking throughout the European Union, regardless of diverging national implementations of Art. 17 DSM Directive.
18 In this respect, Section 18(4) UrhDaG requires judicial interpretation to determine whether it is binding for all platforms within the scope of Article 17 DSM-RL and whether it is sufficient to meet the requirements of the ECJ for the protection of legal uploads. Even if Section 18(4) UrhDaG has no equivalent in other national implementations of Article 17 DSM-RL, a similar obligation could be derived from Poland / Parliament and Council. This is consistent with the reasoning of Advocate General Saugmandsgaard Øe in his Opinion on the proceedings, according to which an initial blocking of public domain content is acceptable if an infringement appears manifest and users can prove their entitlement to use the content within the framework of a complaint procedure.
19 Against this background, doubts remain as to whether retrospective protection of open-content-licensed content against incorrect blocking after the first successful complaint procedure is sufficient to protect the fundamental rights of users. Nevertheless, Section 18(4) UrhDaG is currently the only mechanism for addressing the specific risks of upload filters for content under open content licences. The consideration of this issue in the German implementation of Art. 17 DSM Directive shows that the German legislature understands open content licences as a fundamental part of the copyright system and is committed to further developing copyright law in a way that does not hinder licences such as Creative Commons.
Creative Commons License
Open Access Kommentar, Commentary on H. Service providers for the sharing of online content (UrhDaG) is licensed under a Creative Commons Attribution 4.0 International License.
