The German transposition of Article 17 of the Copyright DSM Directive and its ‘presumed legal use’: incompatible with EU law or a model for balancing fundamental rights in the age of upload filters?

Abstract

ABSTRACT • With its Copyright Service Provider Act, the German legislator implemented its final version of Article 17 CDSMD into national law as of 1 August 2021. After the compatibility with European Union (EU) law was rightly doubted in previous drafts, the situation in the final implementation is now different. With the introduction of ‘presumed legal use’, a mechanism was found that is to locate somewhere between a presumption and an exception or limitation. • The classification is of utmost practical relevance because this construction is found in neither Article 17 CDSMD nor Article 5 InfoSoc Directive.1Therefore, if the mechanism of ‘presumed legal use’ is considered as an exception or limitation, compatibility with EU law can hardly be justified. This article explains the German regulatory mechanism and the considerations behind it and presents arguments for and against compatibility with European law. • The thesis is that the mechanism in its current form is unlikely to meet the requirements under EU law. At the same time, there are good reasons for such an implementation, as it meets the challenges for a balance between fundamental rights probably in the best possible way under the current EU legislative framework.