Germany set a standard on implementation of Art. 17 of the DSM directive
On 19 of May, 2021, the German Bundestag adopted the law implementing the provisions of the DSM directive into German law. The German implementation law is one of the most ambitious implementations of the DSM directive especially with regards to the way it implements the provisions of the controversial Art. 17 of the DSM directive, and it is also the first law that contains an actual mechanism that the platforms can implement.
The implementation of Art. 17 of the DSM directive will contain an ex ante mechanism designed to ensure that the use of upload filters do not result in the blocking of user uploads which do not infringe copyright. This is in accordance with Art. 17(7) of the DSM Directive. The German implementation relies on the concept of “uses presumably authorised by law”, which must not be blocked automatically. According to the concept, in order for an upload to be “presumably authorised by law” and not blocked automatically, it needs to fulfil the following cumulative criteria:
The use must consist of less than 50% of the original protected work,
The use must combine the parts of the work with other content, and
The use must be minor (a non-commercial use of less than 15 seconds of audio or video, 160 characters of text or 125 kB of graphics) or, if it generates significant revenues or exceeds these thresholds, the user must flag it as being covered by an exception.
You can read more about the implementation of the DSM Directive here.
German implementation certainly sets a new standard for transposing the DSM directive into national legal orders. It will be interesting to see whether other countries, including Slovenia, will take German implementation as an example and whether they will take the courage to implement the DSM directive before the adoption of the guidelines by the European Commission, and implement it by 7 June 2021.
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The DSM Directive entered into force in June 2019 and the deadline for implementation expired on 7 June 2021. On 23 June 2021, the Commission launched multiple infringement procedures and sent letters of formal notice to Slovenia and 22 other Member States that had failed to notify it of the full transposition of the Directive. Slovenia remains among the 14 Member States against which the Commission is continuing the infringement procedure. On 19 May 2022, the Commission sent reasoned opinions to Belgium, Bulgaria, Cyprus, Denmark, Greece, France, Latvia, Poland, Portugal, Slovenia, Slovakia, Finland and Sweden.