Paul Keller, 28-06-2020
This document contains a high level analysis of the provisions relevant for cultural heritage institutions contained in the German discussion draft for implementing the CDSM directive that was published on 25-06-2020. The document describes the overall structure of the implementation of Article 14 (Works of visual art in the Public Domain), Article 12 (ECL) and Article 8-11 (Out of Commerce Works).
Germany is the first Member State to propose an implementation of Article 14 CDSM. This is done by adding a new §68 to the copyright act:
§ 68 Vervielfältigungen gemeinfreier visueller WerkeErlischt das Urheberrecht an einem visuellen Werk, so erlischt auch der Schutz von Vervielfältigungen dieses Werkes durch verwandte Schutzrechte nach den Teilen 2 und 3.
English translation (mine):
§ 68 - Reproductions of visual works in the public domain When the copyright in a visual work expires, the protection of reproductions of that work by related rights under Parts 2 and 3 shall also expire.
(Parts 2 and 3 are those parts of the German Copyright act dealing with neighbouring rights, including the protection of non-original photography "Lichtbildschutzrecht"). At first reading the language of the article feels a bit odd, as it only deals with what happens when copyright protection expires. This seems to leave open the possibility that new reproductions of visual works that are already in the public domain could be protected by related rights.
However the explanatory memorandum (page 68ff) clarifies that §68 applies to all reproductions (unless they are original): "The new §68 UrhG-E therefore generally excludes reproductions of a visual work for which the copyright has expired from protection by related rights under Parts 2 and 3."
The explanatory memorandum further clarifies that "work of visual art" must be understood as an autonomous concept of EU law, that goes beyond the category of "Werk der bildenden Kunst" that already exists in the German copyright law. This is why §68 uses the term "visual works" which according to the memorandum covers "works of art that can be perceived visually"
Finally the explanatory memorandum also deals with the application in time and makes it clear that §68 will apply to existing reproductions as well as any reproductions made after its entry into force. For reproductions made before the 7th of June 2021 any neighbouring rights protection ceases to exist on that date for works that are in the public domain on that date, for reproductions of works that are still protected by copyright the neighbouring rights protection of reproductions will cease to exist on the date that they enter into the public domai.
For reproductions made after the 7th of June 2021 no new neighbouring rights protections will arise if the underlying work is already in the public domain, and repercussions of works that are still protected by copyright will only get neighbouring rights protection until the underlying copyright expires.
All in all the implementation of Article 14 seems solid (although it is limited to what is required by the directive only). I leave it to people with a better understanding of German law to decide if the wording of Article §68 adequately conveys all the nuances expressed in the explanatory memorandum.
The German implementation of articles 8-11 CDSM contains a number of interesting deviations from the text of the directive. The licensing provisions for OOCW are presented as more specific variant of a more general ECL provision based on Art 12 CDSM that German has chosen to implement as well. The majority of the OOCW provisions (with the exception of the fall back exception in 8(2)) and the general ECL provision are implemented via a new section 5 of the "Verwertungsgesellschaftengesetz" (VGG - Collective Management Organisations Act).
This is a fairly straightforward implementation of Article 12 CDSM that allows all representative CMOs in Germany to issue extended collective licenses including the rights of outsiders (i.e the mechanism described in Art 12(1)(a) CDSM) for uses within Germany.
Condition for the use of ECL is that "obtaining permission for use from all affected outsiders by the user or the collecting society is unreasonable." which is a significant simplification of the relevant language in Art 12(2) CDSM which talks about "well-defined areas of use, where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction unlikely, due to the nature of the use or of the types of works or other subject matter concerned, and shall ensure that such licensing mechanism safeguards the legitimate interests of rightholders.". What exactly qualifies as unreasonable will have to be determined by the Ministry of Justice via subsequent administrative acts. §51e(2) VGG states that the Ministry has the power to specify "case groups" for which obtaining rights is "unreasonable".
§51(6) VGG defines the reasonable period for publicity measures required by Art 12(3)(d) CDSM to be at last 3 months after the intention to issue extended licenses has been announced by a CMO.