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Authors: Petra Sitte, Simon Weiß
Independently of the DSM Directive, the Act to Align Copyright Law with the Current Demands of the Knowledge-based Society (in German: Urheberrechts-Wissensgesellschafts-Gesetz, or UrhWissG) was the last important amendment to the German copyright law. It entered into force in 2018.
The amendment has established clearer and more comprehensive rules for the use of copyright-protected works for educational and scientific purposes. This was a long overdue step forwards, despite the fact that some particular interests have, unfortunately, prevailed against the needs of schools, universities, libraries and archives. The DSM Directive will not require substantial amendments to these rules. However, as some of these regulations will also be affected by the implementation of the Directive, a resurgence of the debates and struggles of 2017 can be expected. It is therefore useful to take a closer look at some parts of the UrhWissG.
One of the most important rules of the UrhWissG is the limitation period. At the time of its conception, the Coalition had decided to not only establish fixed terms for the newly introduced rules, but also to also phase out all provisions concerning their use in education and science by 2023 – including those that have been in force for a long time. According to current law, this would mean that from March 2023 onwards, copyright-protected materials could no longer be used without separate licence agreements, for example in schools or as part of university research. This would also significantly hinder the work of archives and libraries, which in turn leads to considerable uncertainty, especially with regard to long-term planning.
This time limit was introduced in the legislative process at the last minute. It was only one of several mitigations to the original draft law and passed by the CDU/CSU Parliamentary Group and SPD in the face of significant pressure from a lobbying campaign led by parts of the publishing sector. Presumably, their aim was to obtain further concessions regarding a future decision on the deadline extension, which would possibly be made under time pressure.
The time limit will, however, no longer be feasible under Article 5 of the DSM Directive, which for the first time establishes binding rules for the use in education and science. Even if these regulations scarcely exceed what already applies in Germany: the future scenario implied by this time-limit, i.e. a complete lack of regulations for the fields of education and science, would no longer be in line with the Directive. Against this backdrop, The Left Party Parliamentary Group in the German Bundestag had already submitted a proposal last October calling for a revocation of the time limit However, it is still unclear whether the Federal Government will address this issue promptly, or whether it will take into account further uncertainties.
The exceptions from the usage permit for certain types of content is another important point. The UrhWissG includes such exceptions for schoolbooks; during consultation, scientific publishers lobbied in vain to extend this exception to textbooks, even though these are written and used under completely different conditions. The DSM Directive allows for such exceptions if appropriate licenses are available for the respective content. This provision will have to be added to the UrhWissG regulation on schoolbooks. It is to be expected that this, in turn, will reopen the debate on extending the exception to textbooks.
It is desirable, although not likely, that the implementation of the Directive leads to a re-evaluation of restrictions that were included in the UrhWissG at the last minute. These include the narrow percentage limits for the use of parts of works (10 percent as opposed to 25 percent in the original draft) and a rather incomprehensible regulation which obstructs the use of newspaper articles. In any case, this should be subject of the statutory evaluation of the UrhWissG which has to be completed by March 2022.