Digital Revolution & Legal Evolution in Germany

Status quo of the implementation of Directive (EU) 2019/790

In Germany, the DSM Directive has already been implemented into national law. The law to adapt copyright to the requirements of the digital domestic market was announced on 4 June 2021 and came into force on 7 June 2021. The provisions on the copyright responsibility of upload platforms were defined in the so-called copyright service provider law, which came into effect on 1 August 2021. It also regulates user rights and compensation claims of the authors on platforms as well as a right of information for researchers for scientific research into platform economics (Art. 3 Copyright Service Provider Act (UrhRDaG, Urheberrechts-Diensteanbieter-Gesetz).

National legal framework against computer piracy

Measures against computer piracy are regulated at two levels, a civil and a criminal level. However, the regulations are in the same law: the German Copyright Act. On the one hand, the unauthorised exploitation of copyrighted works, e.g., by copying or making available for download, constitutes a copyright infringement, which can be given a formal warning in accordance with § 97 para. 1 UrhG (Urhebergesetz [Copyright Act]). There is a claim for damages, which is calculated on the basis of different models, such as a license analogy. On the other hand, there may be a criminal imprisonment of up to three years or a fine if works are distributed or publicly reproduced without the consent of the beneficiary. Anyone who bypasses or removes technical protective measures can be punished with imprisonment for up to one year or a fine. Both crimes are only prosecuted upon request.

Copyright & NFT (non-fungible tokens)

So far, there has been no express legal regulation on NFTs. They are thus subject to the existing copyright regulations. An NFT is protected by copyright only if the underlying work is protected by copyright. If, for example, a citation no longer falls under the so-called small coin and is therefore not protectable; this also applies to the associated NFT. In addition, NFTs are predominantly considered an unknown type of use until 2021. In this respect, subsequent claims to remuneration by the originator of the original work can arise when using NFTs.

Autor: Dr. Karolin Nelles