Germany expands academic use of copyrighted material

By EDRi · April 23, 2003

On 11 April German parliament agreed on the implementation-proposal of the
EU Copyright Directive (EUCD). Only the small liberal opposition party
opposed. Public debate centered around new educational and scientific
limitations on copyright. The new law allows teachers to make works
available to a limited group of class members, e.g. in an intranet, for the
sole purpose of teaching, or to a limited group of persons for their own
scientific research to the degree necessary by a given purpose and only for
non-commercial use.

Academic publishing houses feared that they would loose a major source of
income, suggesting that libraries would purchase one copy of a book and
make it available on the Internet to all the world. The law however limits
the use to small parts of published works, works of small extent, and
single articles from newspapers and magazines. Schoolbooks are excluded
completely. In the first two years after the start of the exploitation,
film works may be used only with the consent of the rightsholder.

The law translates all the obligatory provisions of the EUCD into German
copyright law. Authors are granted a new exclusive ‘right of making
available’, i.e. the right to control the on-line use of their works.
‘Technical measures’, i.e. digital rights management systems (DRM) are
protected against circumvention. Following the EUCD in its strictest form,
there is not a single exception in which circumvention would be legal.
Circumvention for non-commercial personal use however, does not incur
criminal or penal charges, as is the case for commercial use, but
rightsholders can sue for damages.

The limitations on copyright in the public interest that existed in German
copyright law before, have also been translated into the digital realm. Two
new limitations for transient copies and for the benefit of people with a
disability have been added from the catalogue of the EUCD.

The private copy limitation states that single reproductions of a work by a
natural person for private non-commercial use on any, i.e. including
digital, medium are permitted. This like most other limitations is bound to
the condition that rightsholders receive fair compensation, i.e. a levy
paid on copying devices and empty media to a collecting society. But on the
internet, the right to make a private copy is completely left to the will
of the copyright owners. According to the European Directive, they are free
to prevent any specific usage through Digital Rights Management. German
government apparently did not put much hope in voluntary industry action,
introducing a fine of 50.000 Euro for companies that don’t honour the
limitations on copyright. But they specifically exclude this enforcement
mechanism for works marketed on-line. Without that enforcement, the digital
fair use copy for personal purposes, though explicitly guaranteed, is thus
in fact abolished.

(Contribution by Volker Grassmuck, co-initiator

Overview of the state of implementation of the Copyright Directive
throughout Europe