The legal nature of Article 17 of the Copyright DSM Directive, the (lack of) freedom of Member States and why the German implementation proposal is not compatible with EU law

What is the legal nature of Article 17 of the Copyright DSM Directive?1 What is the relationship between that provision and the InfoSoc Directive?2 These questions, which might look at first sight academic in both nature and significance, are actually of great practical relevance, including to determine the room for manoeuvre enjoyed by EU Member States during the (ongoing) national transposition phase. In this sense, it is notable that the competent ministry within the German Government has been moving from the idea that the freedom accorded under Article 17 is such that Member States are, inter alia, entitled to decide whether to introduce exceptions or limitations beyond both those specifically referred to in Article 17(7) and those listed in Article 5 of the InfoSoc Directive. The proposed 'de minimis' remunerated 'authorized use' in section 6 of the first German Discussion Draft Act3 provides that the communication to the public and the reproduction required for that purpose of copyright-protected works and parts of works for noncommercial purposes shall be permitted to the following extent: 1. up to 20 seconds of an individual film or motion picture, 2. up to 20 seconds of an individual audio track, 3. up to 1000 characters of an individual text and The author • Dr Eleonora Rosati is a tenured Associate Professor in IP Law at Stockholm University, a Guest Professor at CEIPI - Université de Strasbourg, a Research Associate at EDHEC Business School and an Of Counsel at Bird & Bird. She is also a long-standing contributor to The IPKat and an Editor of the Journal of Intellectual Property Law & Practice. This article • By 7 June 2021, EU Member States shall transpose Directive 2019/790 (the 'Copyright DSM Directive') into their own national laws. The German Government has recently issued a Discussion Draft Act which, inter alia, proposes the introduction of a 'de minimis' exception to the national provision implementing Article 17 of the Directive, which has no statutory basis in EU law. • Some authors have suggested that Germany, like any other Member State, is entitled to introduce copyright exceptions or limitations beyond the body of the EU acquis, due to the allegedly special or even sui generis right nature of Article 17 of the Directive. This brief commentary disagrees with such characterization of Article 17, suggests that what is special about this provision is solely the liability treatment of certain providers and users of their services and concludes that Member States are not entitled to introduce any exceptions or limitations to Article 17 beyond what EU law expressly allows. 4. an individual photograph or an individual graphic with a data volume of up to 250 kilobytes. © The Author(s) 2020. Published by Oxford University Press. All rights reserved.