Author: Matthias Leistner

Abstract: The implementation of the DSM-Directive in the European Member States is underway. Meanwhile 10 Member States, namely Croatia, Denmark, France, Germany, Hungary, Ireland, Italy, Malta, the Netherlands, and Spain have implemented the DSM-Directive and Art. 17 in particular.

In regard to Art. 17, two basic models have emerged. Many Member States, in particular France, closely follow the wording of the Directive with only rather minor differences concerning the legislative technique and certain details, such as the definition of the OCSSPs. By contrast in Germany, the legislator, on the basis of an historic and contextual interpretation as well as interpretation in conformity with fundamental rights, has enacted a different system. Art. 17 is implemented in a balanced way providing for ex ante safeguards during the blocking and stay down procedure for certain contents which are not manifestly infringing (minor contents, user generated contents) and therefore regarded as presumably authorized by law. This effectively amounts to a collectively remunerated notice and delayed takedown system for such presumably legal contents.

On the European level, General Advocate Saugmandsgaard Øe’s Opinion in the Polish case against the DSM-Directive as well as the Commission’s Guidance for implementation also follow this model. Naturally, therefore, the new German law is of particular interest: First, because it notably differs from the wording of Art. 17 and therefore raises questions concerning its compliance with EU law as well as its practical workability. Secondly, because of the major differences to the wording of the Directive there is a keen practical interest of rightholders and OCSSPs to be informed in detail about the new law in Germany, concerning both, licensing and enforcement. Thirdly, and reasonably in light of the Commission’s Guidance, at least a couple of Member States plan to follow the German model or similar approaches, which makes the structure and particulars of the German implementation even more relevant on a policy level.

Citation: Leistner, Matthias, The Implementation of Art. 17 DSM-Directive in Germany – A Primer with Some Comparative Remarks (December 20, 2021). Forthcoming in GRUR Int. 2022 , Available at SSRN: https://ssrn.com/abstract=3989726