Vergütung über alles

Turns out that i am not the only German who likes to make flowcharts about Article 17. Someone in the German Ministry for Justice and Consumer Protection (BMJV) has made a flowchart that depicts how the German implementation of Article 17 would work in practice:

As a flowchart I quite like this both in terms of execution (the use of ✋ and ⚙️ symbols to indicate automatic or human interventions) and in terms of the mechanism proposed, which comes pretty close to the ambition to avoid the use of automated blocking of uploads as much as possible. In line with the “vergütung über alles” principle that animates German copyright law the proposed mechanism seeks to avoid automated blocking via a cascade of remuneration mechanisms (licensing, remunerated minor uses, remunerated uses under the pastiche exception). While there remains the possibility for uploads to be blocked at the request of rightholders (if they are not covered by an exception) this mechanism is probably as close as a national legislator can get to turning the Article 17 right into a remuneration right.

Unfortunately there is a mayor problem with the accuracy of the flowchart. The flowchart published by the BMJV does not accurately depict the provisions of the implementation law proposal (Referentenentwurf) published by the same ministry. Contrary to what the flowchart suggests, in the Referentenentwurf the determination if a use qualifies as a minor use (§6) is not automatic and does not happen before the uploader can pre-flag the use of a matched work as legitimate. Without an automated minor use check, the whole proposal loses most of its appeal¹.

So while it is clear that the mechanism depicted in the flowchart is much preferable to the one described in the Referentenentwurf, it seems prudent to assume that the text of the proposal is what eventually counts². In the meanwhile the BMJV’s ongoing stakeholder consultation (open until 6/11) provides an opportunity to let them know that we are more impressed with their flowcharts drawing skills than with their legal drafting skills.