The Implementation of Art. 17 DSM-Directive in Germany – A Primer with Some Comparative Remarks

Abstract

The CJEU’s judgment in Case 401/19 (Poland v EU Parliament and Council) of April 2022 has unambiguously settled that, if it is to be in line with EU constitutional law, Art. 17 DSM Directive has to be implemented and applied in a balanced way to prevent the immediate ex ante blocking of contents which do not manifestly infringe copyright. Germany (and Austria) have implemented Art. 17 in their national laws in such a balanced way that provides for a delayed takedown for contents which can be presumed to be covered by exceptions to copyright law. This paper outlines the structure and workability of the German implementation law which now, after the CJEU judgment, in fact is a genuine (and perhaps the only reasonable) model for implementation in other Member States which have not yet implemented Art. 17.

Keywords: Copyright Directive, DSM-Directive, Art. 17, implementation Art. 17, online content service provider, copyright liability, platform liability, YouTube, Art. 17 Germany, UrhDaG, OCSSP, Digital Single Market Directive, OCSSP Liability, Algorithmic Enforcement, Platforms, Copyright, Licensing, Trusted

JEL Classification: K