„Fachmann“ vs. „Fachperson“ – Isn’t it time to use gender-neutral language?
In the era of gender-neutral language, Germany’s patent community faces a problem unique to the German language: The term “person skilled in the art” which poses no linguistic problem at all in the English speaking world has had its equivalent in the “Fachmann” (“skilled man”) for decades.
In the German Patent Act, the term “Fachmann” is used prominently in Section 4 of the Patent Act to define inventiveness. Notably, this wording has not been changed in the amendment due to the Second Act of the Simplification and Modernisation of German Patent Law (“2. PatModG”) which entered into force on August 18, 2021.
Also the Guidelines for Examination of the EPO (G-VII, 3.) define the “Fachmann” in the German version, while the English version reads “Person skilled in the art”.
For many German native speakers, the gender-neutral term “Fachperson” sounds artificial, unfamiliar, and somehow awkward. Consequently, most attorneys and judges still use the term “Fachmann”.
But what might be the reasons for changing to a gender-neutral wording?
The European Parliament has issued Guidelines for “Gender-neutral language in the European parliament” (2018) wherein it gives on page 3 the following definition of gender neutrality in language:
“Gender-neutral language is a generic term covering the use of non-sexist language, inclusive language or gender-fair language. The purpose of gender-neutral language is to avoid word choices which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. Using gender-fair and inclusive language also helps reduce gender stereotyping, promotes social change and contributes to achieving gender equality.
Gender-neutral or gender-inclusive language is more than a matter of political correctness. Language powerfully reflects and influences attitudes, behaviour and perceptions. In order to treat all genders equally, efforts have been employed since the 1980s to propose a gender-neutral/gender-fair/non-sexist use of language, so that no gender is privileged, and prejudices against any gender are not perpetuated.
As part of those efforts, over the last decade, numerous guidelines have been developed and implemented at international and national level. International and European institutions (such as the United Nations, the World Health Organisation, the International Labour Organisation, the European Parliament and the European Commission), professional associations, universities, major news agencies and publications have adopted guidelines for the non-sexist use of language, either as separate documents or as specific recommendations included in their style guides. In the European Union, many Member States have also debated language policies and proposed such guidelines at various levels.”
In short, attempting to establish a gender-neutral language contributes to a European effort to overcome gender stereotypes.
Or, as the United Nation’s website puts it:
“Using gender-inclusive language means speaking and writing in a way that does not discriminate against a particular sex, social gender or gender identity, and does not perpetuate gender stereotypes. Given the key role of language in shaping cultural and social attitudes, using gender-inclusive language is a powerful way to promote gender equality and eradicate gender bias.”
As the person skilled in the art is a mere legal concept, it is not apparent why it should have a gender at all. Thus, despite being unfamiliar, it seems “Fachperson” would be a good choice for the German patent community.
And it is possible to use the term “Fachperson”! There are already some (few) decisions by the German Federal Patent Court as well as by the German Federal Supreme Court (BGH) where the “Fachmann” has disappeared in favor of the “Fachperson”, e. g. BPatG decision 9 W (pat) 55/19, dated 10.11.2021, BGH decisions of 28.01.2021 - X ZR 178/18, of 17.12.2020 - X ZR 15/19, of 26.01.2016 – II ZR 394/13.
Language in general is alive and shifting, and evolves as the context in which it is used changes. Who would have thought 200 years ago of terms like “computer” or “telephone” which are now part of our everyday vocabulary? So, why not establish the “Fachperson” to be used with the same naturalness, rendering the “Fachmann” the outdated term?
Overview of innovations
Legal permissions for the reproduction of works [Art. 3 to 7 DSM Directive / Sec. 60d UrhG]
Even before the implementation of the DSM Directive, legal permission was necessary in Germany for the reproduction of copyrighted works for so-called text and data mining. This is the automatic evaluation of already existing digital or digitized works in order to obtain further knowledge from them. Such procedure results in permanent, not just ephemeral, reproductions of copyright-protected content. The permissibility of this practice under copyright law was previously stipulated in accordance with Sec. 60d UrhG (old version) for research for non-commercial purposes. Now, the permissibility of reproducing works has been extended by the German legislator as part of the implementation of the Directive to digital and cross-border teaching activities as well as for the preservation of cultural heritage.
Right for the benefit of press publishers [Art. 15 DSM Directive / Sec. 87g UrhG]
Until now, online providers could profit from journalistic online media by displaying so-called snippets, i.e. short concise excerpts of press articles. This practice was controversial, particularly in the view of publishers, because users would no longer visit their websites. The publishers did not receive any financial compensation. Even when Germany introduced a right for the benefit of press publishers in the German Copyright Act in 2013 (Sec. 87g (4) UrhG (old version)), nothing actually changed. Compensation was still not paid. Publishers resigned themselves to the fact that their articles would at least continue to be displayed in the hit lists, and at least some of the users would follow the links to the respective articles. Ultimately, the German law was even overturned in 2019 by the European Court of Justice on formal grounds for lack of notification to the European Commission (CJEU, judgment of September 12, 2019 – C-299/17 – VG Media/Google).
Now, the implementation of Art. 15 DSM Directive is intended to introduce a new right for the benefit of press publishers not only in Germany, but also throughout the EU. Whether this right can actually induce large providers to make compensation payments to publishers as a result of its implementation throughout the EU is questionable. It seems unlikely that European press publishers together will be able to conduct more successful negotiations with search engine operators since media reporting is often oriented nationally. In addition, search engine operators are left with the option of shortening their snippets to "very short extracts" (according to the rather nonspecific wording of the directive and the German implementation), which can continue to be used license-free.
Liability of platform operators for copyright infringements by users ("upload filter") [Art. 17 DSM-RL / UrhDaG]
Probably the most important and most discussed innovation in German (as well as EU-wide) copyright law is the change in the liability regime of platform operators for copyright infringements by their users.
Previously, under German law, platform operators could be held liable for injunctive relief as a "Störer" (vicarious infringer) for illegally uploaded works by users if they violated examination obligations. These obligations were only triggered by a notification from the rights holder of an obvious infringement; there was no general monitoring obligation (BGH, judgment of August 17, 2011 – I ZR 57/09 – Stiftparfüm).
This is now changing to a large extent with the introduction of the UrhDaG. Platform operators that fall under the service provider definition of Sec. 2 UrhDaG fulfill the criteria of communication to the public if they provide the public with access to copyrighted works that have been uploaded by users of the service (Sec. 1 para. 1 UrhDaG). As a result, they become liable as perpetrators for copyright infringements committed merely by users – regarded from a standpoint under previously applicable law – if they do not obtain comprehensive licenses from the authors in advance (Sec. 4 UrhDaG) or proactively take sufficient measures to counteract the upload of infringing content (Sec. 7 para. 1 UrhDaG). At the same time, there are numerous exceptions for legally permitted (Sec.s 5 et seq. UrhDaG) and presumably permitted uses (Sec.s 9 et seq. UrhDaG). Whereas the former constitute a general element of permission, in the case of the latter, the works or parts of works in question are to be communicated to the public on the basis of a rebuttable presumption of their permissibility until a complaint procedure provided by the platform operator is carried out (Sec. 14 UrhDaG).
Several months, if not years, will certainly pass and some conflicts will be fought before it becomes clear how the new regulations will be implemented in practice. This way, it will also be pointed out where the regulation proves to be purposeful, and where there is a need for improvement on the part of the legislator.
What is certain, is that Art. 17 DSM Directive presents platform operators with new challenges, which they will arguably have to meet individually for each member state. While some member states have set different emphasis for implementation and have adhered more closely than Germany to the rather vague wording of the Directive, other member states will still have to implement the "upload filter", and may also be guided by the recently published guidance of the EU Commission. According to Art. 8 para. 1 of the Rome II Regulation, which implements the Lex loci protectionis principle, the law of the country in which the infringement is alleged applies. When user content is made available on the Internet throughout Europe, this results in platform operators being liable according to the individually implemented liability rules of every single member state.