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 Article 17 of the Directive, having 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 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.