German Parliament Passes Changes To National Copyright Law

The German Parliament on 27-28 June passed several changes to German copyright law and introduced limits and a financial cap on how much lawyers can charge for notices against file-sharers.

To transpose the European Union directive on orphan works, German copyright law now allows libraries, academic institutions, museums, archives, and historical film and audio institutions to digitise and give access to works for which no rights holder can be found after diligent search.

To include a general exception for orphan works (which would allow everybody and not only privileged institutions to make these works available) would be impossible, the legislative resolution reads.

At the same time, the Parliament passed a republishing right for content from publicly funded research. Authors will be allowed to make these works available 12 months after publication by a publishing company, even without consent of the publisher. The republishing aims at giving better access to publicly funded research and mitigate the asymmetry in the relation of big scientific publishers who push for exclusivity and individual academic authors who are interested in broad access to their works.

Critics warn that both copyright changes are not ambitious enough, as, for example, the right to republish only includes some types of works and excludes the “normal work” of academic staff.

Bigger steps were proposed in competing proposals from the opposition, for both better access to publicly funded works and caps for legal fees in file sharing cases. In 2011, some 218,000 notices were filed against file-sharers in Germany, charging €165 million euros in fees and damages from the alleged copyright violators.

Lawyers’ fees and investigation costs often had never been charged to represented rights holders. There are, the legislative resolution reads, “business models based on bulk notifications to users of copyright violations aiming at maximizing profits by claiming damages and investigative costs.” The new legislation sets a maximum fee for lawyers limiting the value of claims to €1000 euros.

The legislation likely would not fix the problem, as no cap was set for damages and language was too vague to protect users from quickly giving in to settle the cases outside of court.