Opinion on the draft discussion on a second act to adapt copyright law to the requirements of the digital single market

On 24 June 2020, the Federal Ministry of Justice and Consumer Protection (BMJV) published a discussion draft on the adaptation of copyright law to the requirements of the digital internal market and provided an opportunity to comment until 31 July 2020. The game – Association of the German Games Industry supports the quickest possible implementation of the underlying EU directive and urges a uniform design throughout Europe. Neither of these objectives will be achieved by this discussion draft.

Games industry would like to see a Europe-wide harmonisation of copyright

In principle, the games industry would like to see a digital single market and a Europe-wide harmonisation of copyright. In this respect, the games industry has already demanded a rapid implementation of Directive 2019/790 on copyright in the digital internal market (DSM Directive) in its statement of 6 September 2019 to the Federal Ministry of Justice. In terms of content, the main criticism is that this proposal for transposition by the Federal Ministry of Justice and Consumer Protection virtually thwarts the actual goal of completing the digital internal market by numerous deviations from the directive and regulatory solo efforts. For example, the de minimis exemption for user-generated content (Section 6 UrhDaG-E) is neither provided for in the DSM Directive nor coordinated with other Member States. In the case of the measures to prevent over-blocking, which we very much welcome in principle, the ministry is pushing ahead regardless of the ongoing stakeholder dialogue provided for in the Directive and is unilaterally creating facts. The obligation for platforms to license is also interpreted in a very idiosyncratic way, in that the rights must be offered or made available through a collecting society. This reverses the rule-exception relationship into its opposite. And in copyright contract law, too, the possibility of a flat-rate remuneration only under provisions ignores the compromises reached in the trialogue and once again a German special path is taken here. As much as the German games industry is open-minded towards the goal of harmonising the regulations in copyright contract law at the high German level of protection, it is unnecessary and hardly conducive to achieving this goal that the Federal Ministry of Justice and Consumer Protection again goes beyond the jointly agreed standards.

Tendency towards forced collectivisation is irritating

From the perspective of the games industry, the tendency towards forced collectivisation is also irritating. With generously designed guidelines for the free use of games content or voluntary licensing to preserve the cultural games heritage, the industry has so far found solutions that are flexible, in line with its interests and, above all, workable. The games industry does not need a collecting society for this purpose. We explained these approaches in detail in our statement in August 2019 and asked for their consideration. We are now irritated that the draft chooses an egalitarian approach without necessity and wants to enforce collecting societies as a collective solution. The special features and modern approaches of our industry are not taken into account by this approach and are made virtually impossible by the legal exemptions and pre-flagging. All this will in many cases be to the detriment of users who have so far been able to use games content without any problems and free of charge. Where up to now there has been no problem for rights holders and users, the Federal Ministry is creating problems with this draft – with possible worldwide implications. For this reason, we as a game unfortunately see ourselves forced, despite previously reserved criticism and even fundamental support for the DSM Directive and its regulations, to vehemently oppose this “discussion draft” and demand a comprehensive revision.

Dr. Christian-Henner Hentsch
+49 30 240 87 79 22