The German federal government is planning its most extensive reform of copyright law within the last two decades, as it faces a June 7 deadline to implement European copyright directives into its national law.

The proposed bill has, however, drawn criticism; a recent open letter to the German Bundestag protesting against the reform was signed by 1,145 musicians, bands and singers, including (from left to right in top picture) Peter Maffay, Helene Fischer, Herbert Grönemeyer, H.P. Baxxter, Campino and Marteria.

In view of the fact that the pandemic has for months prevented concerts or any other live events, Markus Rennhack, a musician and one of the letter's authors, told DW the letter was an "act of desperation" meant to point out the shortcomings of the draft for the online market. 

He said the current draft law would "disenfranchise" and "expropriate" music creators, the signatories argue, adding that authors' personal rights would be "sacrificed on the altar of supposed consumer protection." 

Copyright reform, a highly emotionalized issue

The German musicians' letter of protest is just the latest chapter in an ongoing and heated discussion about copyright reform in the European Union.

There are two parties in the conflict. Internet users and major digital corporations like Google, Facebook and ByteDance (TikTok) are on one side. Users fear censorship through automatic upload filters and copyright barriers for modern forms of communication like memes, and the large corporations do not want to give up the financial and legal advantages of a copyright that is more than 20 years old.

The artists and musicians are on the other side of the divide. They and their distributors are calling on lawmakers to react to the fact that the online platforms make a lot of money from content created by users who also use works protected by copyright.

Until now, illegal use of copyrighted works had to be reported first before being deleted — a lengthy and retrospective process that authors have long complained about.

Both the European Parliament and the member states said they are concerned with striking a fair balance between the two sides when they launched the copyright reform.

What the EU directive says

In 2019, the EU amended its "legal framework on copyright to make it fit-for-purpose in today's digital environment," according to a Council of the EU press release, adopting a directive that modernizes existing EU copyright law to pave the way towards a true digital single market.

"The new rules ensure adequate protection for authors and artists while opening up new possibilities for accessing and sharing copyright-protected content online throughout the European Union."

The directive is now to be transposed into the EU member states' national law by June 7.

Changes in liability for online platforms are a controversial element in the directive. The directive stipulates that the platforms — rather than the users — are responsible for the content under copyright law. The digital platforms are obliged both to prevent the illegal use of protected content and do their best to acquire licenses from the authors or copyright holders. It stipulates that the use of protected content for caricatures, parodies and pastiches — that includes memes — must remain permitted.

The draft law by Germany's Justice Ministry understands the EU compromise to mean that there must be a certain amount of leeway for users.

German draft includes 'minor use' rule

Short bits of copyrighted works such as songs, music or lyrics can be posted by users under certain conditions without them having to purchase a license for them.

Such "minor use" would mean, for example, that a user could use up to 15 seconds of a song, as long as the 15 seconds represent less than half of the original and are combined with other content.

The "de minimis" rule means users do not have to keep track of the platforms' licenses as long as they adhere to the threshold requirements.

But the regulation is a disaster for musicians, says Rennhack, who plays in a band and works for a Leipzig-based music publisher. While the original EU directive was an "extremely good compromise," the German draft law turns a copyright directive into a consumer protection law, believes Rennhack. 

Music industry is doing well

In principle, musicians want their music to be played on major platforms. Despite the pandemic and performance ban, revenues in the German industry rose by 9% in 2020 compared to the previous year, according to the German Music Industry Association. More than 70% of total revenues were generated by digital business.

The platforms, too, have an interest in the snippets that fall under the "de minimis" limit, knowing that the use of music excerpts contributes to the success of TikTok, YouTube and Instagram, as their advertisement revenues depend on the popularity of the content.

In cases of "minor use," the law provides for remuneration, for instance for musicians whose songs are used within the permitted scope. A collecting society is supposed to collect and distribute money accordingly.

No right to data

That is exactly what Rennhack objects to: Users are no longer responsible under the "de minimis" regulation, while the creators are left out in the cold. "According to the draft law, we have no right to the usage data of our content; that is explicitly left out," says Rennhack, adding that creators can't monitor whether the use was legal.

The musician also said using a collecting society would put up-and-coming musicians at a disadvantage. When money is "collected in a big pot, it's distributed only roughly," he argued, adding money would be distributed along well-established patterns, for instance according to how often a song is played on the radio. That, he said, would benefit big names only.

Consumers and creators

Julia Reda, a lawmaker in the European Parliament until 2019 and project leader at the Society for Freedom Rights (GFF), has been campaigning for years for copyright reform that strengthens internet users' rights and gets rid of upload filters. "Of course, you have to make sure remuneration is distributed fairly," she told DW — adding that internal distribution issues should not, however, be played off against consumer protection.

Reda said she regards the use of upload filters as stipulated in the draft law as unconstitutional, while the "de minimis" provision is an "acceptable compromise." The draft law strengthens the rights of authors enormously, both vis-à-vis the platforms and the music industry, she said.

Making sure platforms must accept licensing offers is a huge step forward, she said. If the music industry wants fair payment for its artists, she added, this regulation makes it possible. Collection societies would collect directly from the platforms, Reda said, which would ensure that at least that portion is passed on directly to the artists.

 

This article has been translated from German.