The digital private copy in Germany

Review of the development and effects of former and prospective reforms of the private copying rule in Art. 53 Urheberrechtsgesetz (German Copyright Act)

by Till Kreutzer, PhD, IP Lawyer, Research Fellow at the Hans–Bredow–Institute, Member of the German Commission for UNESCO

i.e. Büro.Hamburg Mittelweg 177 20148 Hamburg Fon. [+49] [40] 229 48 56-0 Fax. [+49] [40] 229 48 56-3

www.ie-online.de

AGENDA

2 Development: The reassessment of Art. 53 UrhG in the digital age

1

3 Analysis: The effects of the recent reforms on private digital copies

History: The private copying rule in German Copyright Law

4 Outlook: The intended changes of Art. 53 UrhG in the “Third Basket”

5 Recommendations

The beginning:

First introduction of a modern private copying rule in the fundamental reform of the

German Copyright Act in 1965

Reason:

Marketing of the first technical equipment for

mechanical copying (magnetic tape recorders, first photocopy machines)

Reasoning:

1. Private realm is uncontrollable

2. Control of private realm (by collecting societies) would infringe rights to

privacy

Compensation:

Levy for copies on storage media (images and sound) –

not for reprographical copying

Early further development:

Copyright reform 1985 – Extension of the right to remuneration and the levy system to reprographical

copies

AGENDA

2 Development: The reassessment of Art. 53 UrhG in the digital age

1

3 Analysis: The effects of the recent reforms on private digital copies

History: The private copying rule in German Copyright Law

4 Outlook: The intended changes of Art. 53 UrhG in the “Third Basket”

5 Recommendations

The first “Act to reform copyright law in the

Information Society” (“First Basket”) – coming into

effect in September 2003

Intention:

Implementation of the InfoSoc–Directive 2001/29/EG

Reassessment of the private copying rule:

Art. 53 sec. 1 UrhG shall apply to private copies,

notwithstanding their format (analogue, digital)

Changes to the private copying rule 1:

The protection against the circumvention of TPM/DRMS overrules digital private copying. No enforcement of the (digital) private copy rule against TPM protection

Changes to the private copying rule 2:

(Failed) try to reduce the right to private copying

from legal sources in order to ban downloads in filesharing systems

Fundamental reform of the private copying levy system:

1.The statutorily fixed rates for certain copying devices

and storage media were abolished in favour of contractual settlements between the affected

parties.

Fundamental reform of the private copying levy system:

2. The adequate compensation for private copies must be calculated on the actual

amount of copies made with the respective device/stored

on the respective media.

Effect:

Illegal copies (e.g. made by circumventing TPMs, made from obviously illegal

sources) cannot be compensated!

The “Second Act to reform copyright law in the

Information Society” (“Second Basket”) –

coming into effect in January 2008

Changes to the private copying rule:

Expansion of the restriction of private copying from

illegal sources in order to (effectively) ban downloads

in filesharing systems

No changes to the interrelation between the

private copying rule and TPM protection

The Act to implement the Enforcement Directive – coming into effect in

September 2009

1st change concerning private copying:

Amendment concerning the enforcement of copyright

against consumers:

Introduction of a new right to information against ISPs

On demand of rights holders ISPs have to disclose the

identity of users who committed copyright infringements on the

Internet (using a certain IP–Adress)

Effect:

(Hundreds of) Thousands of court procedures where initiated by the rights owners (mainly the music industry) to identify “Uploaders” in filesharing

systems and to accordingly send them cease–and–desist–letters or

sue them

2nd change concerning private copying:

(Failed) Attempt to limit the reimbursement of lawyer’s costs for cease–and–desist–letters in case of “simple” and “marginal”

copyright infringements committed by consumers (esp. online) to

100 Euro

AGENDA

2 Development: The reassessment of Art. 53 UrhG in the digital age

1

3 Analysis: The effects of the recent reforms on private digital copies

History: The private copying rule in German Copyright Law

4 Outlook: The intended changes of Art. 53 UrhG in the “Third Basket”

5 Recommendations

The question:

Did the recent restrictions and amendments of the

private copying rule benefit the authors and/or the

industry?

The answer:

No positive effect whatsoever can be observed!

1. The limitation to copying from legal sources

1st effect:

The rights holders neither control nor enforce the ban on downloading from illegal

sources. Actually an enforcement is (technically)

not even possible.

Reason:

Apparently the downloaders (different from the

“uploaders”) cannot be identified in filesharing

communications by their IP–Addresses and therefore not

pursued

2nd effect:

The rights owners get no compensation through the

levy system for the numerous (since the reform:

illegitimate) downloads anymore

This affects esp. the creators many of whom derive a

significant part of their income from levies

2. The priority of the protection of TPM over the

digital private copy

Has widely the same effects as other restrictions of the

private copying rule

Since copying technically protected works is not legal anymore, copies made under the circumvention of TPMs are no longer compensated through the levy system.

Since TPMs or the legal protection against

circumvention do not effectively prevent users from copying, numerous

(illegal) copies that are actually made are not compensated anymore.

3. Collateral Damage:

Art.53 UrhG – an enigma

Read and understand (no kidding …)

Remember:

This rule addresses the consumers and other non–

professional users!

AGENDA

2 Development: The reassessment of Art. 53 UrhG in the digital age

1

3 Analysis: The effects of the recent reforms on private digital copies

History: The private copying rule in German Copyright Law

4 Outlook: The intended changes of Art. 53 UrhG in the “Third Basket”

5 Recommendations

The parliament ordered the Ministry of Justice to

evaluate the need to further reforms of certain aspects

in copyright law

Relating the private copying rule the parliament

requested the M.o.J. to evaluate certain demands of the music and film industry

(again):

1. The need to reduce the right to private copying

from an own original (i.e. to a backup copy)

2. The need to interdict the development and distribution of “intelligent recording

software”

Expected effects (if enacted):

No control and enforcement possible

Further reduction of the compensation

More or less significant drawbacks esp. for the

creators

(Re–)Liberalisation or simplification of the

private copying rule is not part of the request of the

parliament nor on the agenda of the Ministry of Justice

AGENDA

2 Development: The reassessment of Art. 53 UrhG in the digital age

1

3 Analysis: The effects of the recent reforms on private digital copies

History: The private copying rule in German Copyright Law

4 Outlook: The intended changes of Art. 53 UrhG in the “Third Basket”

5 Recommendations

1. Reduce restrictions to feasible and enforceable

aspects

2.Return to the axiom:

Compensate what you cannot control

3.Simplify statutes that address consumers and other

non–professional users

4.Protect user’s interests more effectively:

Make statutorily exceptions contract–proof (mandatory)

Thank you for your attention!

Dr. Till Kreutzer, www.ie–online.de