The Implementation of Art. 17 DSM Directive in Germany – A Primer with Some Comparative Remarks

In: GRUR international: Journal of European and International IP Law, Band 71, Heft 10, S. 909-923

Abstract

Abstract
The CJEU's judgment in Case 401/19 (Poland v EU Parliament and Council) of April 2022 has unambiguously settled that, if it is to be in line with EU constitutional law, Art. 17 DSM Directive has to be implemented and applied in a balanced way to prevent the immediate ex ante blocking of contents which do not manifestly infringe copyright. Germany (and Austria) have implemented Art. 17 in their national laws in such a balanced way that provides for a delayed takedown for contents which can be presumed to be covered by exceptions to copyright law. This paper outlines the structure and workability of the German implementation law which now, after the CJEU judgment, in fact is a genuine (and perhaps the only reasonable) model for implementation in other Member States which have not yet implemented Art. 17.