The Federal Ministry of Justice plans to pay an exception for minor uses of snippets of video, audio and text material on online platforms for non-commercial purposes, which is a thorn in the side of the Federal Ministry of Economics (BMWi). According to the company run by Peter Altmaier (CDU), this possibility of public reproduction of smaller parts of copyrighted works meets “considerable concerns under European law and must therefore be deleted”.

According to Paragraph 6 of the new law “on the responsibility of service providers for the sharing of online content”, planned as part of the copyright reform, up to 20 Seconds of an audio or video file, up to 1000 characters of text or pictures up to 250 Kilobytes may be used in social media without authorization from the rights holder. Such an intervention is not provided for by the new EU copyright directive, writes the BMWi in a submission to the justice department that is available online.

More effort, less benefit? According to the Ministry of Economic Affairs, the intended statutory “minor barrier” may also violate the user rights listed in the old copyright directive. One acknowledges the concern “not to disproportionately restrict the freedom of communication of Internet users”. The “fundamental legal tension between free online communication in the digital economy and property protection” should be resolved proportionately in the case of minor issues. However, this would have to be addressed differently than by a “formal limitation determination”.

The direct remuneration claim linked to the triviality clause is also not well received by the BMWi. “The aim of appropriately remunerating artists and creative people for their work,” is how the department welcomes. However, the chosen approach should “offer no added value in this regard”. A direct remuneration of the authors would namely not increase “the total amount to be paid for creative services”. Instead, “the effort of contract negotiations will increase”, since platforms would now have to speak to two partners.

BMWi on the line of the rights holder As part of the ongoing ministerial coordination, the BMWi is also calling for the term pastiche, which was adopted for the first time from EU regulations, to be limited: The reasons for the law state that in particular “practices such as remix, meme, GIF, mashup, Fan fiction, cover or sampling could be thought of “and all of them would be permissible. This list is assessed as “too extensive, since the rights of artists and creative people are strongly affected by a statutory limitation regulation”.

The statement is surprising, since the de minimis limit is one of the core elements around the To make the use of upload filters by platform operators unnecessary. The CDU itself had promised in a position paper last year for precisely this reason that it would rely on such an exception from the exclusive right of exploitation and that everyday use in the network would be remunerated at a flat rate. On the other hand, the criticism from the BMWi is fully in line with the rights holders from the music and film industry.

Minister of State for Culture supports Altmaier Minister of State for Culture Monika Grütters largely supports the concerns of her party colleague Altmaier. The CDU politician also sees the de minimis barrier as “inadmissible” because it disregards the requirements of European law. She also pleads for the relevant paragraph to be deleted “without replacement” and for the term pastiche to be defined more narrowly: for the majority of the practices mentioned, there is “a license market that should not be undermined by a remunerated barrier”.

The planned exemptions from platform regulation, such as those for small service providers and the restricted licensing requirement, do not correspond to the outcome of the negotiations at European level, according to the government’s cultural commissioner.

Do not limit publisher participation With the no less controversial ancillary copyright law for press publishers on the Internet, which is to be expanded with the draft, Grütters welcomes the fact that the Ministry of Justice has set the limit initially I deleted eight license-free words and wanted to implement the exceptions under European law “literally”. The Christian Democrat regrets, however, that this property right and the publisher’s participation “will no longer be implemented ahead of schedule”.

Meanwhile, the BMWi continues to oppose the plan that authors will use at least a third of the revenues through a collecting society of the press publisher should be involved. This endangers the private autonomy of the parties. It should also be refrained from legally limiting the amount of the publisher’s participation to a maximum of one third.

Research clause desired The Federal Ministry of Research welcomes the draft in principle. The de minimis clause “takes into account user behavior in connection with platforms and the exercise of freedom of expression,” it writes. Legal permission for caricature, parody and pastiche is particularly important in order to strike a balance between the right to freedom of expression and the freedom of art and intellectual property. The proposed “pre-flagging procedure”, which now includes a preliminary check and, according to critics, would lead to the use of upload filters, is in principle okay.

The house of Anja Karliczek (CDU) however, a “research clause” is still missing to anchor rights of information for scientific organizations to online platforms. It is good that text and data mining are free of charge and that computer programs should be included. Overall, it is important to keep an eye on the legitimate interests of everyone, including “users, the network community, researchers and teachers” and to create “a well-functioning and fair copyright market”.

(axk)