Of special interest to German fans, as well as other fans in the EU.
Germany is working on implementing Article 17, which makes significant changes in European copyright law. This has created an exciting opportunity to clarify that fan fiction is legal under German copyright law.
The German government has sent a draft bill to the two houses of Parliament. The final vote is planned for the beginning of May. The government proposal makes clear that nonprofit websites like the Archive of Our Own should not be required to get licenses from copyright owners, as commercial websites like Facebook and YouTube will have to do. The draft bill also proposes to explicitly legalize fan fiction, fan art, and many other transformative works, as part of the EU exception for “caricature, parody and pastiche”.
There is one problem, and one risk. The problem is that the proposal includes language that is not required by Article 17 and that could be confusing and unduly restrictive of the ability to engage in caricature, parody and pastiche. This language restricts caricature, parody and pastiche “to the extent required by the specific purpose,” which would invite second-guessing of an artist’s purpose by courts and copyright claimants. Fan fiction, like caricature, parody and pastiche in general, has its own artistic existence and courts should not ask whether a work of fan fiction takes “too much” of the characters.
The risk is that some lobbyists are asking for a remuneration requirement for caricature, parody and pastiche—including fan fiction and fan art—even if they are not posted on commercial websites. The consequences of a payment requirement would be perverse: it would favor commercial platforms over nonprofits such as the Archive of Our Own and Wikipedia. This is because users could freely upload fan fiction, fan art, memes etc. to YouTube or Facebook, because the commercial platform would already be paying a collecting society through the implementation of Article 17, but the same users would have to pay a collecting society if they wanted to upload the same fan fiction, fan art or memes to their personal website or to a nonprofit website such as Archive of Our Own. In practice, the law would strengthen the big commercial platforms by creating an incentive for internet users to close down their private websites, leave nonprofit platforms such as AO3, and move their activities to a Facebook group instead.
We suggest that German fans should (1) ask Members of the German Parliament (Mitglied des Bundestags) to remove the restriction on the caricature, parody & pastiche exception “to the extent required by the specific purpose” and (2) explain how important it is that this exception should not be subject to remuneration. One easy way to do that is to use the portal abgeordnetenwatch.de, whose page on the Committee on Legal Affairs and Consumer Protection shows those members of parliament who will be in charge of this proposal.
We believe that the law should not add an additional condition, not part of Article 17, to the exception for parody, caricature and pastiche, saying that uses should only be allowed “to the extent required by the specific purpose”. This wording only serves to muddy the waters, because it is very difficult for a user to determine the extent of the use of a work that is “required” for the purpose of fan fiction, fan art, and other transformative uses. Likewise, we believe that the law should protect individual fans and noncommercial websites, and fight against the dominance of Facebook and YouTube, by rejecting a compensation requirement for the exception for parody, caricature and pastiche.
Update 5 May 2021: Based on fan response to this post about Germany’s impending copyright reforms, we have created a Change.org petition for fans to use, which may provide an easier way to reach the legislator than submitting individual comments in the form of a question to the website (as suggested in the original post).