by Andreas Dietl (mail/at/ with contributions from Max Dornseif and Volker Grassmuck

Implementation of the Directive

Four months after the deadline set by the European Union, Germany has almost finished transposition of the mandatory provisions in the Copyright Directive. In certain areas, it has done so with the proverbial German thoroughness, while other topics from the Directive and the two WIPO[1] treaties remain untouched by the Law on the Regulation of Copyright in the Information Society (Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft[2]). Together with other objectives of the German government and Parliament, these are to be dealt with in a second legislative package, the first draft of which is currently being worked out by parliamentary officials.

The German law faithfully reproduces the contradictions of the Directive. On one hand it explicitly gives a right to produce private copies of copyrighted material, while on the other it punishes the circumvention of technological protection mechanisms, apparently even if circumvention serves the sole purpose of producing a legal private copy. There are tough fines for the circumvention of copy protection measures, and if circumvention is done commercially, it can even lead to a prison sentence of up to two years. Copy-protected media have to be identified, however, and producers of such media have to provide the ability to unlock the protection for a few narrowly defined legitimate uses.

The draft law has passed the Bundestag, the German Parliament, and now has to be agreed in the Bundesrat, the Second Chamber in Germany’s federal system. Though the Bundesrat has expressed criticism of the Government's first draft before and majorities differ in the two chambers,[3] it is likely that the law will pass. In the Bundestag, it found support among a vast majority of Social Democrats and Greens (the two parties that make up the government) and the Christian Democrats. Together, these three parties hold 92% of the seats in the Bundestag. Only the presently unimportant Liberal Democrat Party voted against.

While differences between the political parties will be discussed in more detail further on, it is important to know that copy protection was largely uncontroversial in Parliament.  Discussions in the media and in the general public centred on a provision allowing educational institutions and research collectives to post small proportions of copyright works on intranets without the permission of the rightsholder. Although the provision will expire in 2006, the discussion on this was coloured by an industry campaign that claimed it would cost thousands of jobs and put the very existence of small and medium-sized printing houses at risk.

The two opposition groups, Conservatives (CDU/CSU) and Liberals (FDP[4]) adopted the tone of this industry campaign.  They claimed the government draft still did not contain enough legal backing for technological protection measures, and the obligation to identify copy protection or to lift it in certain cases was detrimental to the interests of rightsholders, etc. The distinction between authors, rightsholders and publishers was ignored; measures that are in the interest of publishers only were repeatedly depicted as being in the interest of “artists”. The discourse thus created is best described as populist culture.

Overall, not one group in the Bundestag acted as an advocate of users.  That was left to individual members, such as the Social Democrat media expert Jörg Tauss, who were isolated on this issue within their own factions.

All but a few technical changes decided in Germany affect the Law on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte, normally cited as Urheberrechtsgesetz – Copyright Law - or UrhG). Since it was passed in 1965, this has been one of the most amended German laws. Within the last ten years alone, it has been changed 16 times, with the last major change in March 2002 affecting no less than 20 sections.

The changes decided in the draft Law on the Regulation of Copyright in the Information Society are the most extensive ones the Copyright law has experienced so far. They affect a third of the law’s 186 sections. Considering the fact that the EU Copyright Directive has only 15 Articles, it is hard to believe, therefore, that the present law project aims at transposing only “what the Directive and WIPO treaties bindingly proscribe”, as the German Minister of Justice, Mrs. Brigitte Zypries, put it, speaking to the Bundestag on November 14, 2002.

New provisions in the Law mainly affect the following topics:

·         Introduction of the new legal definition of “making available to the public” that applies mainly to online content

·         Changes in provisions concerning private copies

·         Legal protection for technological copy protection mechanisms.[5] Media protected by these mechanisms must be clearly labelled[6]

·         On similar terms, legal protection for copyright information attached to works[7]

·         The exclusive right of the producer of a sound carrier to distribute is extended to all kinds of distribution. He may sue for indemnities if this right is infringed[8]

·         “Exceptions” limit copyright in favour of disabled persons and of news reporting. Exceptions in favour of schools, educational and research institutions[9] have also been passed, but will expire in 2006.[10] There are numerous limitations to the exceptions. One such rule refers to copies for private use, but it is countered by a regulation forbidding the circumvention of copy protection[11]

Other, minor provisions include the following:

·         Copyright of standards papers published by private institutions under state auspices (section 15)

·         Costs of compensation procedures

·         A definition of copy that includes temporary storage of a file on a computer, but excludes technical copies (caching etc.)[12]

·         Pictures from catalogues cannot be used for free any more, not even to illustrate an exhibition review[13]

·         The performance of a piece of folklore is now also protected by copyright[14]

·         Performing artists have in most cases the right to be named and to distribute copies of their performance exclusively[15]

The legal term of “making available to the public”

A central element of the draft law is the introduction of a new legal term, taken from Article 3 of the Copyright Directive, which in turn was taken from Articles 6 and 8 of the WIPO Copyright Treaty: “to make a work or other protected subject-matter available to the public”. In the newly introduced section 19a of the German copyright law, the term is defined as follows:

“The right to make available to the public is the right to make publicly accessible the work, on a wired or wireless basis, and in such a way that it is accessible for members of the public from places and at times of their choice.” [16]

The amended version of section 15 puts the term in context:

“A work is publicly reproduced when it is made available to the members of the public or when it is made perceptible simultaneously.”

In simple English this means there is no more legal difference between broadcasting something (making it “perceptible simultaneously”) and posting it online: the same provisions that already apply for radio broadcasts obtain legal force for web contents. This is confirmed by section 22, which now says:

“The right to present broadcasts and publicly available material is the right to make publicly available radio broadcasts and reproductions of the work based on public availability by ways of screens, loudspeakers or similar technical devices“

Consequently, the term of “making available to the public” is introduced in numerous sections throughout the law where it couples formulas that are already in force for broadcasting a protected work. “Making available to the public” clearly applies to posting contents or files on a web site on the Internet or in a public newsgroup.

The draft law contains no provisions whatsoever that address the fact that at least part of the content legislators want to tackle – namely files transmitted on a peer-to-peer basis – is not broadcast or widely spread but passed on from one individual to another.  Therefore, it will be for the courts to decide whether placing a file in a shared folder of a file-sharing client also falls under the definition of making available to the public. They will have to consider section 15(3) (amended), where it says:

“A member of the public is anyone who isn’t connected by personal links to the person exploiting the work or to the other persons who have access to or can perceive the work in a non-physical manner.”

One might argue that users of file sharing networks enter into a personal relation based on their common interest in music or computer games, but anyone who has followed the discussion in the German Parliament and the media will have to admit that this interpretation must be considered quite exotic.

Exceptions and limitations

In accordance with Article 5 of the Directive, Article 10 of the WIPO Copyright Treaty and Articles 2bis and 13 of the Berne Convention[17], the German law introduces a number of exceptions and limitations to the exclusive rights to reproduce, to communicate and to make available to the public a work. These exceptions, laid down in a number of sections of Part 6[18], oblige the rightsholder to allow for copies of his work in the following cases:

·         if the copy is only short-term for technical reasons such as browsing or caching (section 44a). This provision was newly introduced.

·         for the uses of law enforcement and the judiciary (section 45)

·         for persons with a disability, in order to gain access to a work  (e.g. the visually impaired, who may scan a book or paper to have it read by a machine; section 45a). This is also a new provision

·         for the use in schools and educational institutions, but only copies of small parts of a work or of small works. Copies of school books are not allowed at all (section 46)

·         for use in school broadcasts (section 47)

·         in the case of public speeches, but not for publication in monographs (section 48)

·         newspaper articles and radio commentaries for inclusion in press digests (section 49)

·         for use in reports on current-day events (section 50) This provision was extended to cover reports in all kinds of media, including the Internet

·         Citations (section 51)

·         For public performance, if royalties are duly paid or in the scope of beneficial events (section 52)

“It is permitted to make available to the public, in as much as this is required for a certain purpose and justified by non-commercial ends, small published parts of a work, works of small size and single contributions from newspapers and periodicals, for the purpose of illustration in education at schools, universities, non-commercial institutions of education and further education and institutions of vocational training, and exclusively for a delimited group of instruction participants, or published parts of a work, works of small size and single contributions from newspapers and periodicals, exclusively for a delimited group of persons for their own scientific research” (section 52a).

This provision, newly introduced for digital content but parallel to the provisions for printed matter in section 46, has caused outrage in the publishing industry. A consortium of printing houses published a Web page[19] and advertisements claiming “the draft section 52a puts the future of science, research and printing houses in Germany at risk” and “Universities and schools have to economise. That’s why you will be allowed to steal books and magazines.” This claim is, to say the very least, exaggerated, because the section allows for no more than portions of a work to be published on access-controlled parts of an intranet or the Internet.

The problem seems to be more that if educational and research institutions can claim a right to copy portions of works, that might put a hole in a future market for copy-protected eBooks that printing houses are trying to build up – with little success at the moment.  Nevertheless, the Conservative and Liberal opposition parties adopted the arguments of the publishing industry, and section 52a was the main reason for the Liberals’ voting against the government’s draft law. Under the pressure of the Conservatives, who threatened to block the whole draft law in the Bundesrat, the First Chamber, where they hold a majority, this provision was heavily amended as compared to the government’s first draft and earmarked with an expiry date at the end of 2006.

In the debates of the German Bundestag, Members of the Conservative and Liberal factions have attacked all exceptions, claiming they are undermining DRM schemes.

Private use

One might think that downloading a file from the Internet, be it from a Web site, a newsgroup or within a P2P network, is an action similar to making a copy of a radio broadcast for private use, which has always been allowed in Germany. Amendments to section 53, which deals with “Copies for private use”, have no effect on non-paper copies. It used to postulate very simply that “single copies of a work for private use are allowed”, adding that for the transmission of works to visual or audio media and for the production of copies this was only true when it happened free of charge. Now it even allows for charges “if the copies are on paper or a similar material and by any photo-mechanical or other method with similar results”. This formula is mainly directed at copy shops, which will now be able to offer all-around service without infringing copyright legislation.

But what is legal in the analogue world is not necessarily also legal in the digital world. Section 53(2) states that it single copies of a work may be produced only if very complex conditions apply. If the copy is for personal scientific use, it must be a paper copy or it must be used in an exclusively analogue way. It would be forbidden, therefore, for a scientist to copy a colleague’s article from a scientific magazine Web page to his hard disk and to paste a citation into his own article later. It would be allowed, however, to print the text out and to re-type the citation himself. The same applies to copies for “personal information on current events, when the work is broadcast” or “for other personal use, when it refers to small parts of a work or to single contributions published in newspapers or magazines or when it refers to a work that has not been on sale for at least two years”.  Even in these cases, digital copies are not allowed.

In principle the situation is different for media, even digital, which has been bought. In such cases, the provision of section 53 allowing production of copies for personal use applies in full. Still, it is limited by section 95a, which deals with copy protection mechanisms, such as CDs non-compliant with the Audio CD standard or CSS for DVDs.

Technological protection measures

Germany has almost literally translated Article 6 of the Copyright Directive, changing little more than the order of the provisions. They have been written into section 95a of the revised version of the German copyright law. Subsection 1 of the new section transposes the obligations from Article 6.1 of the Directive and Article 11 of the WIPO Copyright Treaty. It reads as follows:

Effective technological measures for the protection of a work protected by this law or of any other subject matter protected by this law may not be circumvented without the consent of the rightsholder, when the person concerned acts with the knowledge or with reasonable grounds to know, that the circumvention takes place to gain access to such a work or protected subject matter or to make use of it.

Subsection 2 takes its inspiration from Article 6.3 of the Directive, and defines “effective technological measures in the same way[20]:

For the purposes of this law, the expression “technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent and limit actions in respect of protected works or other subject-matter protected by this law, which are not authorised by the rightsholder. Technological measures shall be deemed effective where they may be used by a rights owner to control use of a protected work or of any other subject-matter protected by this law by ways of access control, a protective mechanism such as encryption, scrambling or any other such commutation or mechanism to control reproduction, which assures achievement of the protection objective.

Subsection 3 is taken almost literally from the German translation of the Copyright Directive; it is equivalent to Article 6.2 of the Directive:

It is forbidden to produce, to manufacture, to sell, to lease or to advertise the sale or the leasing of, or to hold for commercial purposes devices, products or components or to provide services which:

are part of a promotion, advertisement or marketing for the purpose of circumvention of effective technical measures, or

have only a limited commercially significant purpose or use other than to circumvent effective technical measures, or

have been designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of effective technical measures.

This section is backed up with criminal law provisions, which are laid down in section 108b. It takes its inspiration mainly from the draft Directive on measures and procedures to ensure the enforcement of intellectual property rights, COM (2003) 46, which is the EU transposition of the obligations laid down in Article 14 of the WIPO Copyright Treaty.

The draft Enforcement Directive, which was presented by the Commission at the end of January 2003 as a follow-up to the Copyright Directive, contains detailed proposals for legislation to protect Digital Rights Management (DRM) schemes. In its Article 20, it calls for “criminal sanctions, including imprisonment” for infringements of copyright.

The German law transposes this demand, which has no legal power yet, quite fiercely: it calls for imprisonment of up to a year if infringements are not for the exclusively personal use of the infringer or persons related to him. The same goes for “producing, importing, distributing, selling or leasing a product or device” that can be used to circumvent copy protection. If any of the above is done for commercial purposes, the maximum imprisonment is three years.

In the same way, the German law protects electronic information that appears in connection with a protected work, as laid down in Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Performances and Phonograms Treaty. These provisions refer as well to embedded information under DRM schemes, such as copyright notices in movie trailers on DVDs. Section 95c, Par. 1, reads as follows:

Information from rightsholders for the purpose of safeguarding rights may not be removed or altered, when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject matter or if the removal takes place in a knowingly unauthorised manner and, if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright.

In the two other paragraphs of this section, it is clarified that only electronic information is protected this way (it refers to any information embedded in the code of the media, but not printed on its exterior or its package), and that all kinds of distribution – including “making publicly available” – of such material are also forbidden. This is also valid for broadcasting, which probably means TV stations can’t snip away the copyright notice, usually at the end of the closing credits, any more. The provisions laid down in section 95c do not figure among the summary offences as defined in section 111a, which means infringements against the ban on removing copyright information can only be pursued under civil law.

Obligation for the rightsholder to identify protection mechanisms

In the U.S., the Electronic Frontier Foundation is currently leading a campaign in favour of an obligation to label copy protection mechanisms that disable certain types of media from being played.  For example, labels would be required on CD-RW drives, but also in normal CD-ROM drives, car stereos, and DVD players (in the case of audio CDs). Thanks to Article 6.4 of the Copyright Directive, EU citizens do not have to fight for this right. An obligation to identify copy protection measures, as laid down in section 95d of the German copyright law, may be regarded as the natural offspring of these articles. Under the title of “Obligation to identify”, the law says the following:

Pieces of work and any other items protected by technical measures must be marked in a clearly visible manner with indications on the properties of the technical measures.

Any person or company who protects works or other protected subject matter by technical measures has to mark these with his name or company name and postal address, in order to enable the assertion of claims according to section 95(b)(2) [limitations to copy protection for law enforcement, handicapped persons, educational and research purposes; etc. ]

In the debate of the German Parliament of November 22, 2002, Conservative Member of the Bundestag Steffen Kampeter has denounced this provision as “a hint for the thief-to-be”, and his party has made it quite clear that they would rather not have copy protection mechanisms identified.

Infringements of this provision are, however, punished just as hard as tampering with copy protection. The maximum jail term for rightsholders who do not duly identify copy protection mechanisms they have introduced is one year.

Constitutional exemption for scientific research

The German constitution will provide notable exceptions to Section 95a of the draft implementation prohibiting circumvention acts. Article 5(III) of the constitution states: “Art and science, research and teaching are free. The freedom of teaching does not release teachers from allegiance to the constitution.” These constitutional rights can only be constrained by other constitutional rights, which means practically that s.95a cannot narrow scientists’ rights to do research on technical protection measures.

The government acknowledged this by stating in their notes on the law:

“Acts of circumvention committed solely for scientific purposes (e.g. cryptography) will not be prohibited.”[21]

This will create a new battlefield in the courts on the question of whether certain acts constitute “scientific research” or are merely commercial product development. This problem will be worsened by the fact that much cryptography research has previously been done by amateurs and industrial laboratories.

Forthcoming legislation

The German Government has made it quite clear that it plans to follow this law up with a second one that will most probably contain even stricter regulations on copy protection. Speaking to the Bundestag on November 22, 2002, Germany’s Minister of Justice, Mrs. Brigitte Zypries, questioned in particular Germany’s present system of paying royalties to rightsholders from an exploitation society financed by obligatory contributions from operators of copy machines, sellers of blank media and the like. Mrs Zypries said[22]:

“The time has not yet come to replace our system of global compensations […] by a system of per-use payment, of individual licensing in the digital domain. […] I know of course that there is an important pressure group that sets a high value on these individual payments being part of the next package. We will have to negotiate this, and we will also have to see how far technical developments will have gone by then. […] Let us take the next step together in the course of the next year.”

The opposition seems to be more than willing to do this. On the same day, Günter Krings, the Conservatives’ shadow rapporteur said on the issue:

“The future of copyright is [...] Digital Rights Management, a new, intelligent protective strategy. […] Copyright will be the central market structuring branch of law in the digital age.”

Half a year later, Mrs. Zypries announced that immediately after the vote on the law presently discussed – that is, probably already in April, 2002 - officials from her ministry would start working on the draft for what she called a “second package”. No details have been published so far on the contents of that package, but it is possible to draw conclusions from the discussions in the Bundestag Legal Affairs Committee, where it was part of a deal between the Government and the opposition in order to pass the first package. Mr. Krings told the Bundestag on April 11, 2003:

“We have to tackle the topics yet to be dealt with in a speedy manner: legality of the source of a copy, copies from an original, sending copies and the creation of real incentives for the development of Digital Rights Management schemes. We offer our hands and are ready to start preliminary work on the second package already during the next session week, because time is scarce.”

Agreement was reached, it seems, between the four parties in the German Parliament that individual licensing schemes will replace the present regime of global levies sooner rather than later.  These will be backed up by advanced DRM schemes that allow for pay-per-use policies and eventually replace the very foundations of copyright legislation presently in force. Differences seem to remain only on whether portions of the old system will be preserved, or whether it will be replaced altogether.

For the user, it won’t make a difference.  If the German copyright lobby and their parliamentary allies get what they want – and there is no reason to believe they won’t – digital media that can be used on any machine at any time, that can be passed on from one user to another, or that can be legally copied and recompiled, will soon be a thing of the past.

Speaking to the Bundestag on April 11, Mrs. Zypries said, referring to the second package:

“The Bertelsmann Foundation was as kind as to declare its willingness to join us for a part of this way. I think this is a good thing.”

The Bertelsmann Foundation holds a majority of the shares of Bertelsmann AG, Germany’s media conglomerate with revenues of 18.3 billion Euro from various TV, radio, print and online media. It is rare for a politician to admit the direct influence of an industry lobby in such an open manner, and it can only be explained by the fact that the vast majority of the Bundestag do not regard it as problematic.

[1] The WIPO Copyright Treaty (WCT; and the WIPO Performances and Phonograms Treaty (WPPT;

[3] The opposition Christian Democrats hold a majority in the Bundesrat.

[4] Since the September 27, 2002 elections, the socialist PDS is only present with two Members who do not have any parliamentary rights.

[5] s.95 a; 108b; 111a

[6] s.95d

[7] s.95c

[8] s.85

[9] s.45a, 46, 48, 50, 52a, 95b

[10] s.137k

[11] s.53, 95a

[12] s.16; s.44a

[13] s.58

[14] s.73

[15] s.77, 78

[16] Translations of all German law provisions in this text by the author.

[18] Sections 44a – 63e; in particular sections 44a to 53. Additional provisions on fines and punishments for non-compliance can be found in section 95c

[20] Note that, just like the Directive, the German Law uses the term “effective measures” although it does not seem to believe in the effectiveness of the measures, or else the kind of legal protection provided for in this law would not be necessary.  According to this definition, the term “effective” essentially means “effective in a legal way”, i.e. sufficient to serve as a way to gain the protection of the law, but not necessarily sufficient to discourage even the most illiterate potential offender.  It is an open invitation to publishers not to invest too much into effective technical copy protection, and to leave that work to their legal departments.