The controversial EU directive on copyright reform has been adopted. On April 15, 2019, the majority of EU member states voted in favour of the directive. Germany additionally submitted a protocol declaration.

Voting result no surprise

As expected, Finland, Luxembourg, Italy, the Netherlands, Poland and Sweden refused to give their agreement. So only 19 EU states voted for the directive, as representatives from Belgium, Estonia and Slovenia abstained.

In the run-up to the vote, there was a short-term hope that Germany would also abstain. In this case, the directive would not have been adopted, as the approving Member States would have to account for at least 65% of the EU population. This quorum would not have been achieved without Germany's agreement. Reason for hope was given by the coalition agreement between the German governing parties CDU/CSU and SPD in which they clearly reject upload filters. But this is precisely what Article 17 of the Directive (formerly Article 13) provides for.

Germany wants to avoid upload filters

In the end, however, the German government decided to vote in favour of the directive and only to make a so-called protocol declaration. In this declaration, it expresses "serious concerns" regarding the use of upload filters and thus proclaims:

The aim must be to make the instrument of "upload filters" largely unnecessary.

Among other things, the government therefore wants to ensure at national level "that services such as Wikipedia, university repositories, blogs and forums, software platforms such as Github, special interest offers without reference to the creative industry, messenger services such as WhatsApp, sales portals or cloud services do not belong to platforms within the meaning of Article 17". For these services, therefore, nothing is supposed to change.

However, the legal significance of the protocol declaration is controversial. Some people regard it only as symbolic. But in December 2016, the Scientific Service of the German Parliament (Bundestag) had determined in an assessment that protocol declarations by Member States could possibly influence the interpretation of the Directive.

The ECJ has not ruled on this issue. Yet. Because if the Federal Government is serious about its declaration, infringement proceedings against Germany by the EU Commission can be expected.

Time for implementation

But it will be some time before then. Now all EU member states have two years to transpose the requirements of the directive into their national law. They will either have to create new rules or adapt existing rules if necessary.

Publishers' law will do even more damage

Article 15 of the Directive (formerly Article 11) provides for the introduction of an ancillary copyright for press publishers. As is well known, such a right has existed in Germany since 2013. However, the requirements of the Directive go far beyond the existing German regulation so that its scope of application has to be massively extended.

While currently only commercial providers of search engines or services that prepare content accordingly are affected, all "information society service providers" will be affected in future. The completely unclear exception for the "private or non-commercial uses of press publications by individual users" will not help here. An already terrible law will be even more terrible and will cause more damage to the press landscape than it already has.

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