Comments on the German "Discussion Draft" for non-transposition of Article 17 of the DSM Directive as adopted
2020-08-16
2020-08-16
After that Germany made a long declaration on the occasion of the adoption of the DSM Directive signaling that it would not implement Article 17 of the Directive as adopted, the Discussion Draft published by the German Ministry of Justice for the transposition, inter alia, of the Directive, has not come as a surprise. If the Draft is adopted, the scope of the online content-sharing service providers (OCSSPs) to which the obligations under Article 17 apply will be significantly reduced in comparison with the definition in the Directive; the obligation of OCSSPs to make „best efforts” to obtain authorization from the rightholders as determined in Article 3(1) and (2) of the InfoSoc Directive will be replaced by „every effort” to accept licenses when offered or otherwise are available (that is, practically, zero effort); rights to remuneration will be introduced in contrast with the exclusive rights of authorization to be recognized in accordance with Article 3(1) and (2) of the InfoSoc Directive as clarified in Article 17(1) and (4)(a) of the DSM Directive; the post-blocking complaint and redress mechanism available to users as foreseen in Article 17(9) will be replaced by a post-making-available mechanism that rightholders may use, and so on. However, the notes presented in the Draft go even further by suggesting the theory that, contrary to what is provided in Article 17(1) – namely that the acts performed by OCSSPs are acts of communication and making available to the public and „therefore” they are subject to the authorization of the owners of rights as provided in Article 3(1) and (2) of the InfoSoc Directive – are not covered by Article 3(1) and (2) of the Directive on those rights but by a sui generis right. The paper is mainly devoted to rebut all allegations in detail by which the drafters try to support this theory. It is submitted that the provisions and the notes presented in the Discussion Draft are in conflict not only with Article 17 of the DSM Directive, and not only with the French – German agreement through which both parties have contributed to a compromise to make the adoption of the Directive possible, but also with the InfoSoc Directive, the CJEU case law, the WPO Treaties and probably also with the TRIPs Agreement – in contrast with the French draft law to transpose the Directive which would faithfully transpose Article 17, also in accordance with the French-German compromise, the EU law and the international norms. (The paper was originally uploaded on August 7, 2020. In this version, some minor wording corrections have been made.)