Informationsplattform Open Access: German copyright reform

Copyright law reform in Germany

The reform of German copyright law represents the implementation of a European Union Directive of 2001 on copyright in the information society (also known as the InfoSoc Directive), which aims to harmonise copyright and related rights in the various EU member states. In September 2003 the so-called ¨First Basket¨ of the copyright law reform entered into force within the period stipulated. These changes related mainly to restrictions on private copying and to the circumvention of copy protection measures in the case of digital media. Soon after the First Basket was enacted, a heated debate began on a number of less pressing but controversial pending issues which constituted the so-called ¨Second Basket¨ of the reform. Up to June 2004, eleven working groups led by the German Federal Ministry of Justice deliberated on the proposed reforms (Hoeren, 2005). The first draft bill was submitted on 9 September 2004. It was entitled Copyright in the knowledge-based society - a fair balance between the interests of producers of creative works, industry and consumers.

The media industry lobbyists were instrumental in shaping the draft bill. Protest by the science and research sectors ensued. In the run up to the draft bill, the German Rectors' Conference, the Science Council, the Max Planck Society and numerous other organisations had already expressed criticism of the copyright reform and had joined forces in a Coalition for Action on Copyright for Education and Research. In a joint declaration known as the Goettingen Declaration on Copyright for Education and Research issued on 5 July 2004, the coalition members urged that "In a digitised and networked information society, access to information worldwide for the purpose of education and science must be guaranteed at all times and from any place!". If you would like to sign the Goettingen Declaration, you can do so here.

In the course of deliberations on the Bill, the upper house of the German parliament, the Bundesrat, issued a statement on the Second Basket in May 2006 calling for the explicit incorporation of the principle of Open Access into copyright law and advocating a number of further amendments aimed at making the law more education- and science-friendly. The statement called for the addition of the following passage to Section 38 (1) of the German Copyright Law (UrhG) which regulates secondary rights to contributions to collections (i.e., journal articles):

"In the case of scientific contributions which have been produced within the framework of teaching and research activities funded mainly by the public sector and which appear in periodicals, the author has the right to make the content otherwise accessible to the public six months at the latest after primary publication, even if he granted an exclusive right of use [to the other party], provided this is justified for the pursuit of non-commercial aims and [the document] does not appear in the same format as the primary publication. This right cannot be waived."

However, in a counter-statement the Federal Government rejected this proposal on the grounds that it might contravene constitutional and European law. As a result, Section 38 UrhG remained unchanged. Hence, authors have the right to otherwise reproduce and distribute their work one year after the date of appearance only if the publishing agreement does not contain a provision to the contrary. This is of particular relevance to publications in humanistic journals and monographs whereas STM publishing agreements frequently rule out secondary rights (Steinhauer, 2006). The international SHERPA/RoMEO-Listings provide details of publishers who permit their authors to make their articles openly accessible via repositories (usually in the form of the author's version, i.e., the post peer-review version which has been accepted for publication).

 

On 5 July 2007, the German Bundestag passed the Second Basket of copyright law reforms. On 21 September 2007 it was passed by the Bundesrat although hardly any of the changes proposed by the upper house had been adopted. After being passed by the Bundesrat and published in the Federal Law Gazette (BGBl), the law entered into force on 1 January 2008 (BGBl. I 2007, S. 2513 ff., PDF, 117KB).

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Which changes are relevant to Open Access?

New types of use

With regard to Open Access, the changes relating to the treatment of unknown types of use are of particular significance. Section 31 (4) UrhG (The grant of a right of use for as yet unknown types of use shall have no effect.) was deleted and replaced by Section 31a UrhG (Contracts with regard to unknown types of use) and Section 137l UrhG (Transitional provisions governing new types of use). As a result, in the case of existing publishing agreements, the rights of online distribution (considered an unknown type of use until the end of 1994), which were hitherto held by the author, automatically devolved to the holder of the rights of use unless the author lodged an objection before the end of 2008. This provision affected all articles in respect of which a publishing agreement was concluded between 1966 (the year in which the copyright law entered into force) and 31 December 1994. This means that from 1 January 2009 onwards the rights of online use automatically devolved to the publisher if the author had not taken prior steps to prevent this. Publishers could avail of the right of online use before the end of 2008 if they sent notification of their intention to proceed with the new type of use to the author's last known address and if the author did not lodge an objection within three months. After the expiry of this three-month period, the publisher automatically acquired rights of use in respect of the new type of use, irrespective of whether the notification had actually reached the author or not. Section 137l did not make it unequivocally clear whether the rights of use acquired by the publisher are exclusive or non-exclusive. Some legal experts take the view that the rights of use acquired are exclusive because Section 137l (1) states ¨that the rights of use unknown at the time the contract was concluded are also deemed to have been granted¨ (Steinhauer, 2007).

Authors had two possibilities to safeguard their rights of online use. They could have either lodged an objection with the publisher or they could have granted non-exclusive rights of online use to a third party.

To make it easier to lodge an objection to the retrospective grant of rights of use unknown at the time the contract was concluded, a sample letter of objection in German and English was made available by the Max Planck Digital Library. When lodging the objection, authors were recommended to grant publishers a non-exclusive right of online use so that the publication would also appear in the publisher's product range. The objection had to be lodged by the end of 2008. For further information see the Max Planck Digital Library's FAQ at the time.

Another way to prevent the rights being granted automatically to the publishers was to grant non-exclusive rights of online use to third parties such as repository operators (when so doing, no set format was required). The publisher, as holder of the exclusive (non-digital) rights of use, did not have to be informed of the grant, and the third party who acquired the non-exclusive rights of use does not necessarily have to avail of them. Hence, journal articles in respect of which a publishing agreement was concluded before 1 January 1995 can also be made openly accessible online after 1 January 2009 provided the non-exclusive rights of use were granted to third parties before the end of 2008. Suggestions about the best course of action to take were made available in open-access.net's experts forum archive. See also the time limits imposed under Section 137l UrhG and the former Max Planck Digital Library's FAQ.

When entering into a publishing agreement, authors should try, wherever possible, to avoid granting exclusive rights of use in their work. There are a number of ways to contractually assert the right to make a document openly accessible in parallel with publication.

Other changes to copyright law which also affect science and research and access to information but which are not directly connected with Open Access are:

Section 52a Making [works] publicly accessible for teaching and research

Section 52b Communication of works via electronic reading terminals in libraries, museums and archives

Section 53a Delivery of copies on demand [by public libraries]

In accordance with the principle of the country of protection, German copyright law is applicable also to international contracts. Hence the above copyright law amendments affect not only contracts concluded with German publishers but also contracts with foreign publishers.

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Assessment of the Copyright Law Reform

For the most part, the copyright law reform is viewed critically by scientists and scholars. The argument frequently advanced by the representatives of the publishing sector that the State should not intervene in the publishing market is not considered to hold water in the case of scholarly publications. Reto Hilty and Benjamin Bajon (2008) of the Max Planck Institute for Intellectual Property point out that the scholarly publications market is not characterised by genuine competition because, after all, scientists or other persons seeking scientific information cannot simply choose an alternative document. The authors question whether the interests of publishers and authors can be balanced via limitations on copyright at all. They consider it dangerous to compare knowledge as a public good with other areas shaped by copyright such as the entertainment industry and call for a solution to the problem by means of a sector-specific competition law (Hilty, Bajon 2008).

The Coalition for Action on Copyright, which represents the interests of research organisations, science and libraries, also considers copyright law to be increasingly unsuitable as a regulatory instrument for education and science. In their view, the amended copyright law mainly fills the coffers of the publishing houses but considerably limits the supply of information to science and education and makes it more awkward and much more expensive. Steinhauer (2007) concluded that the Federal Government had not achieved its declared goal of creating an education- and science-friendly copyright law. Instead priority had been given to the interests of the exploiters and their legal position had been strengthened.

Representatives of the libraries, especially the document delivery services, expressed regret that, in the course of the transition from the print age to the electronic age, publishers had succeeded in getting massive limitations on the privileges for the public [library users] which had previously been provided for in the copyright law (Brammer, Rosemann, Senf, 2008).

By contrast, legal experts welcome the fact that the delivery of copies by libraries, common practice for many years now, has been regulated in the copyright law for the first time.

While publishers welcome the changes relating to the grant of rights in respect of unknown types of use (Section 31a UrhG), they criticise the fact that, in their view, the privileges under Section 52a (public accessibility for teaching and research) are much too far-reaching and describe them as ¨expropriation without compensation¨ (v. Lucius, 2008).

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What happens next? Will there be a Third Basket?

Immediately after the Second Basket was enacted, the Bundestag's Education Committee issued a resolution initiated by the education policy experts Carsten Mueller (Christian Democrats) and Joerg Tauss (Social Democrats) calling for a speedy commencement of work on a Third Basket which should be explicitly entitled the "Education and Science Basket". After the Second Basket was passed, the Bundesrat (upper house) also called for further adaptation of copying regulations to the needs of education, science and research without delay (Heise online, 21.09.2007).

On 15 September 2008, the Greens parliamentary group submitted a parliamentary question to the Federal Government regarding the Third Basket. It can be concluded from the Government's reply that a Third Basket is at least not ruled out: "Before the end of autumn 2008, the Federal Ministry of Justice will initiate comprehensive consultations with the circles concerned on the resolutions of the German Bundestag (Bundestag Printed Matter 16/5939) and the Bundesrat (Bundesrat Printed Matter 582/07). After the evaluation of the results, it will be decided what further action should be taken." (Bundestag Printed Matter 16/10284). Since the Bundestag Printed Matter containing the Statement on the Second Basket is explicitly mentioned in the reply, it is evident that the Third Basket will also deal with Open Access topics.

On 30 October 2008 a conference took place in Goettingen entitled Is there a need for a Third Basket? - What is expected and required of a further reform of copyright law from the point of view of libraries, universities and publishers. There was consensus that a Third Basket could be expected in the next legislative period at the earliest. Furthermore, all the aforementioned parties welcomed the prospect of a Third Basket. The urgency of the matter was emphasised especially by representatives from the science and library sectors.

 

Developments at the European level will be of importance for the content of and the changes under the Third Basket. In Berlin in mid-November, scientists from twelve EU member states founded a community of interest called ENCES (European Network for Copyright in support of Education and Science) which will endeavour to achieve improvements to the Copyright Directive issued by the European Commission in 2001. ENCES' goal is to build a network for further cooperation for the representation of the interests of education and science in the EU in order to represent these interests more forcefully in Brussels (Heise online, 18.11.2008).

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Links for further reading

Please note that the content of this section is intended for information purposes only and does not constitute legal advice.

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