With a delay of almost nine month the EC Directive on the Harmonization of certain aspects of Copyright and Related Rights in the Information Society (2001/29/EC) was implemented into German law. The amended German Act on Copyright and Related Rights (abbr.: Copyright Act) became effective on September 13, 2003.
The new copyright law is based on the perception that an effective regulation has to reflect ongoing technical developments. At the same time the amendment serves as preparation for the upcoming ratification of international copyright treaties: WCT ( WIPO Copyright Treaty of December 20, 1996) and WPPT (WIPO Performance and Phonograms Treaty of December 20, 1996).

Most of the amended specifications inhere a mainly clarifying function. On the whole however the new German copyright law considerably strengthens performers’ rights of exploitation and personal rights, and brings these rights in line with the requirements of the digital age.

Of particular significance are the following amendments:

Technical protective measures: For the first time the legislator states clearly that technical protective measures, e.g. protection against unauthorized copying of CDs, are valid and must not be circumvented. The production and distribution of devices which allow the evasion of the technical protective measures is impermissible (sec. 95a German Copyright Act).

Reporting requirements: Provided that a producer decides to use technical protective measures he has the duty to inform the consumer thereof coherently (sec. 95d German Copyright Act).

Private copies: The legislator keeps on argueing for consumers’ copyright privileges for private copies. Particularly with regard to internet file-sharing sites however there now is an explicit restriction to reproduction activities where the original source is not obviously illegal (sec. 53 German Copyright Act). Concerning evasive actions against technical protective measures there seems to be a discrepance: though the circumvention of such measures is impermissible (see above) a number of up to seven private copies is exempt from punishment (sec. 108b, sec. 53 German Copyright Act). If this exemption does also apply to the authors’ claims and injunctive reliefs by civil law is not yet settled but can be assumed.

It remains to be seen how the parties involved, particularly the CD and DVD industry on the one hand and consumer councils on the other hand, will deal with the amended law and how the legislation and jurisdiction in this field will develop in the future.

A further amendment through which the rights of film producers in particular will be sustained is expected to be passed in this election period.

Fabian Lehmann