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New Working Paper – Coming into force, or coming into effect? A study on the German implementation of art. 17 CDSM

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New Working Paper – Coming into force, or coming into effect? A study on the German implementation of art. 17 CDSM

By 20 January 2022February 8th, 2022No Comments

CREATe presents the first entry in our 2022 series of working papers: “Coming into Force, not Coming into Effect? The Impact of the German Implementation of Art. 17 CDSM Directive on Selected Online Platforms” by Jasmin Brieske (PhD candidate and research assistant) and Alexander Peukert (Professor Dr. iur.) both of Goethe University Frankfurt am Main. We had the pleasure of hosting the authors in November 2021 for a discussion of their paper at Morning Coffee with CREATe, our informal online seminar series.

Jasmin writes:

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When the German Act on the Copyright Liability of Online Content Sharing Service Providers (OCSSP Act) entered into force imposing several new obligations on the service providers, the question arose whether the Act would lead to an immediate impact on platforms’ policies. For the purpose of answering this question, the paper looks beyond the normative regulation and, in the attempt of a more empirical approach, examines the factual effects of the German implementation of Art. 17 CDSM Directive at the time of its enactment on 1 August 2021.

The paper focuses on the OCSSP Act as it is a Member State implementation which provides an original and elaborate approach to avoid disproportionate blocking (“over-blocking”) by automated upload filters. In response to the debate on the EU level and in other Member States, the Act introduces a new category of “uses presumably authorised by law” – i.e. any statutory limitation to copyright – that an OCSSP must in principle communicate to the public. Inter alia, a rebuttable presumption applies for content which is flagged by the user as legally authorised while it exceeds the limits of a minor use but still qualifies for a limitation or exception because it combines images or less than half of indexed content with other non-indexed content into e.g. a remix or mashup. This option enables the user to upload the content without interference by an automated copyright moderation tool. Rightholders, on the other side, are equipped not only with the possibility to initiate an internal complaints procedure but also with a “red button” which leads to the immediate blocking of content if it impairs the economic exploitation of premium content by the rightholder.

This said, the German OCSSP Act provides a profound legal framework. However, the quality of a statute is not only measured by the written word of its regulation but also by the impact it has on the reality of its addressees. To find out whether the OCSSP Act is able to live up to its expectations, we reviewed and analysed the German-language websites of eight services as to whether their terms and conditions and other publicly accessible copyright policies changed upon the entry into force of the German OCSSP Act. The data collection took place at four times between July and November 2021. It concentrates on the question whether and, if so, to what extent, the OCSSPs implement six selected mandatory duties under the German Act.

With a total of 514 saved documents including terms and conditions, general community and copyright guidelines, complaint forms, FAQs and other relevant copyright help pages, the paper allows to identify the practical effect of the German OCSSP Act over time on individual services, and across the eight services covered. The paper sets out the results of the data collection and identifies the differences on the platforms with regard to the statutory duties of the German Act. At the same time, the limitations of the data collection are emphasised. While the study provides an overview of the specific platform functionalities concerning the use of automated copyright moderation tools, from a legal point of view the conclusions drawn from these findings for the relationship between EU regulations and Member State implementation are one of the key aspects of the paper. The paper sheds a light on the question why larger platforms such as YouTube, Facebook and Instagram display a higher compliance with the OCSSP Act than comparatively smaller content sharing platforms and how the different Member State implementations and generally uncertain legal circumstances on the EU level impair the willingness of OCSSPs to take measures. Lastly, the paper examines the consequences on an effective protection of legitimate user interests if platforms fail to comply with the regime regarding “uses presumably authorised by law”, i.e. minor or pre-flagged uses, of the German OCSSP Act.

Abstract

Germany transposed Art. 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market (CDSMD) through a new Act on the Copyright Liability of Online Content Sharing Service Providers (OCSSP Act), which entered into force on 1 August 2021. After a brief summary of the state of the debate on the EU level regarding Art. 17 CDSMD and of the German OCSSP Act, this paper examines whether the terms and conditions and other publicly accessible copyright policies of eight services, namely YouTube, Rumble, TikTok, Twitter, Facebook, Instagram, SoundCloud and Pinterest, changed upon the entry into force of the German OCSSP Act. For this purpose, we reviewed and analysed the relevant German-language websites four times between July 2021 and November 2021. Our data collection reveals only few changes in the terms and conditions of platforms over time, but significant differences between the services in relation to their use of content recognition technology. The concluding section discusses the implications of these findings for the future of copyright policy in the EU.

The full paper can be downloaded here.