Germany Still Seeking Balance In Copyright Policy

By Monika Ermert for Intellectual Property Watch
A series of five recent hearings in the Justice Committee of the German Parliament have revealed deep rifts over the second part of Germany’s copyright law reform.

This so-called “second basket” deals with adaptations of copyright law to the digital age after a “first basket” from 2003 aimed at implementing the European Union Copyright Directive. During the November hearings, consumer rights organisations, academics and professional organisations of authors and creators heavily criticised a draft proposal as unbalanced.

“The hearings showed that the proper balance of interests has not been found for every aspect of copyright law,” said Guenter Krings from the ruling Christian Democratic Party (CDU). “It once more became clear how many facets copyright law has and that this makes it practically impossible to come to a consensus.” But, said Krings, “you cannot say that one party had been favoured unilaterally. It’s only very difficult to come to a solid assessment of consequences of certain provisions.”

But Jerzy Montag, Member of the Green Party opposition, sees this slightly differently. “The current reform draft is in some points friendly to industry and antagonistic to the interests of authors and creators,” he said. “We should give more rights to creators, but I am pessimistic here. And it makes me see red to think about how vehemently based on the current draft the CDU-SPD [Social Democratic Party] coalition wants to go after users.”

The target of Montag’s critique is a proposed change to establish criminal liability for illegal private copies. A mass complaint against 25,000 private users resulted in a clear statement of a court in Karlsruhe that it was unable to bear that load and therefore would not open proceedings in minor cases.

The German justice minister reacted with the introduction of a “bagatelle clause” into the draft proposal to limit criminal proceedings on commercial “pirates.” Yet after heavy criticism over legalising intellectual property theft from rights holders and some members of parliament, the minister withdrew the bagatelle clause (which refers to a minor case of no commercial relevance).

“The legislator should not to use the criminal law blackjack,” said Montag. “If the current draft law passes, I am afraid people young enough to be experts in the digital world will be prosecuted galore while I cannot see a crime. At the same time authors will get even less for their work.”

Consumer and civil rights organisations have reacted to the ministry’s move by opening the first online prison for people declaring, “I made private copies.” The heat of the debate over private copying is fuelled by the ministry’s consistent denial of demands of consumer rights organisations like the Bundesverband Verbraucherschutzzentrale (Federation of German Consumer Organisations) to provide an enforceable fair use right in case a rights holder controls content using digital rights management (DRM).

Cacophony Over Copyright Fees

While the private copy issue is mainly settled for Krings, he said adequate remuneration for authors would be a major issue for further changes by members of the Justice Committee, especially with regard to a cap for copyright levies to be paid by hardware manufacturers of copy-friendly equipment – personal computers, printers and copiers, CD burners, writeable CDs and more.

Representatives of authors and collecting societies alike have been up in arms against linking copyright levies collected and redistributed by the collecting societies to hardware price and setting a cap at five percent of the hardware’s sales price. With hardware prices coming down, the fee that has to be paid to remunerate authors for legitimate private copying would vanish.

“There certainly has been the claim that this cap resulted from lobby work of the hardware industry,” said copyright expert and lawyer Helge Langhoff, who observed the hearings for the Munich Institute of Copyright and Media Law. Langhoff said that if there are any changes, they are expected on this issue.

“There is no silver bullet with regard to flat-rate copyright levies,” said Krings. He was moreover still not sure if it was not better to keep legislators and the administration in charge of fixing the ratio of the copyright fees. Earlier negotiations between collecting societies and the hardware industry – or in another case, educational publishers and school authorities – were much delayed at the expense of rights holders. Excessive fees would unduly burden industry and customers, hardware manufacturers argue.

Krings said changes also might be made in issues examined at the hearings related to unknown services and exemptions for the educational and academic sector.

Reto Hilty, director of the Max Planck Institute for Intellectual Property, said in his statement that in the academic sector the interests of publishers and authors were very different. Yet there was much more common interest between scientists and the general public as both were calling for fast and technologically advanced access to information at reasonable prices.

As publishers were able to offer content only electronically – without license obligations for third parties, including the universities that originally funded the academic authors’ work – the very content necessary for everyday work of academics could be marketed at arbitrarily high prices. That has in fact happened, said Hilty, who spoke of exorbitant prices for scientific publications despite the fact that scientists not only do not benefit, but today also do most of the editorial work.

In order to grant necessary access, scientists should be allowed to disseminate their work after six months for non-commercial use, he said. Hilty said legislation should not overly protect business models at the expense of a copyright law friendly to researchers and the information society generally. Whether politicians will hear the call underlined in several testimonies remains to be seen. As opposed to the fee cap, only one major group, academics and libraries, are backing changes, making the chance for a new balancing not good.

The chances also are not favourable for authors, in theory at least the main subjects to be protected by copyright law, to stop what the Bundesverband Regie (Directors’ Association) calls a “dispossession” of their work. While they given certain rights to object that a publisher starts reusing their work in a new technical format – for example broadcast a TV show over mobile phones – the creator loses that right once the publisher has started to use the new format. And as the publisher is not obliged to inform the authors about the start of the new usage form, they would have to track what is on their publishers’ mind.

While again remuneration according to the draft law has to be adequate, negotiations could be burdensome after publication has started, the Bundesverband Regie warned. The already well-known model of a total buy-out of creators will then also be possible for future usages. Yet the total buy-out also means that nothing more will be paid to authors.

Monika Ermert may be reached at info@ip-watch.ch.