Germany considers new copyright reform

November 2003

Internet, Record Labels, Artists, Music Publishing

The German Minister of Justice Brigitte Zypries has announced the “second basket” of reform for copyright laws for Germany. Zypries said she wanted to see the remaining provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer (see the position in the UK below). In particular the new laws will prohibit the right to make private copies made from digital sources. German commentators have remarked that this provision is similar to that of the US Digital Millenium Copyright Act and have pointed out that such a provision would be unacceptable; Copyright owners who protect their content by encyryption would be relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons and commentators add that basic constitutional freedoms would be undermined. Eva-Maria Michel, Legal Counsel of the WDR Public Broadcasting Station has said that the provisions would be a violation of the constitutional liberties of the media. Michel warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field.

The movie and music industries have, by contrast, lobbied to remove the right to make private copies completely. The German Phonographic Association have said that private copies, at least for music and films, merely substituted buying the products and were seen as a convenience by consumers. “Consumers are not able to clone their cars, so why should the cloning of our products be allowed?” The Association chair reiterated the negative effect of piracy on the music market: “We’ve lost one third of our market and had to lay off several thousand people last year and in 2003 we expect a lose another twenty per cent. You may see this as a disaster”. The Association has said that it would fight to restrict the right to make private copies to very special cases. “It is not our intention to harm the consumer, we just cannot give away our products as free presents.”

But Professor Reto Hilty, Institute for Foreign and International Patent, Trademark and Copyright Law, warned against using copyright laws to address economic problems. “Legislators still have to work on balancing of interests between artists and users, but many of the problems talked about by industry representatives are just purely economic problems. They have nothing to do with the original intention of traditional author-focused European copyright law.” It was, said Hilty, in the interest of the industry to make their products and business models more attractive for consumers. So long as consumers had to pay €18 for a music CD knowing that the royalty for the original composer was not more than 72 cents the consumer would hardly be inclined to perceive him or herself as a pirate when sharing CD copies. “When Universal announces it is to cut its CD price by half, you as a consumer start to think about margins, don’t you?”


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