Enforcing copyright in government documents? Not as uncommon as one might think

It was just a few days ago that Advocate General Szpunar issued his Opinion [discussed here] in the important Afghanistan Papers case, ie Funke Medien, C-469/17. This is a referral from Germany asking about the interplay between copyright protection and fundamental rights, notably freedom of information and freedom of the press.

Pending all this, some interesting news comes from Germany. The IPKat is happy to host the ‘alert’ below, as provided by Katfriend Mathias Schindler (as of September 2018, an assistant to Anke Domscheit-Berg).

Here’s what Mathias writes:

The MDR (Mitteldeutscher Rundfunk) is one of nine German regional public broadcasters, covering the three Länder of Thuringia, Saxony and Saxony-Anhalt. Like other regional broadcasters, it has its own TV channel and also contributes content to the TV channels within the ARD joint organisational structure.

On October 20, 2015, the MDR did broadcast a TV piece regarding the Glyphosate risk assessment and a study conducted by the BfR, the Bundesamt für Risikobewertung (Federal office for risk assessment), which is under the authority of the German ministry of Food and Agriculture. At the same time, it published a PDF containing that study on its website.

Three days later, the BfR sent a cease and desist letter to the MDR, demanding the removal of this study. The BfR claimed that the entire study was written by full-time-staff employed by the BfR within their regular line of work. When the MDR did not remove the file from its website, the BfR sued the MDR before the Landgericht (LG) Köln (country court of Cologne) and won. 

The court agreed with the BfR that the study is subject to copyright protection, that the BfR held the usage rights and that §5(2) UrhG (the German copyright law) regarding the public domain status of certain official works would not apply. The court also stated that the MDR did not obtain permission to use the content, that no exception in German copyright law applied, even when factoring in constitutional rights. The LG Köln granted the request for a preliminary injunction, ordering the MDR to not publish the study "Renewal Assessment Report, Glyphosate Addendum I to RAR, Assessment of IARC Monographies Volume 112 (2015): Glyphosate" and the document "Stellungnahme des BfR zur IARC-Monographie über Glyphosat" without the permission of the BfR in full or in part. The full decision from the LG Köln from December 15, 2016 can be found here (it is the written decision confirming the preliminary injunction granted by the same court on November 17, 2015).

The MDR appealed and on December 6, 2017, the OLG Köln (upper country court of Cologne) upheld the decision by the LG Köln.

Neither did BfR nor MDR decide to go public about this lawsuit. News about this lawsuit only surfaced after Anke Domscheit-Berg, member of the German Bundestag wrote a minor interpellation  ("Kleine Anfrage") to the German federal government regarding the strategy and implementation of the Open Government Partnership process and regarding Open Data, transparency and participation.

In question number 24, Domscheit-Berg asked in what cases, since 2014, the German ministries and authorities had invoked copyright in order to restrict the usage and dissemination of information. In its answer, the government listed a number of already known cases as well as the BfR lawsuit. According to the German government, the BfR lawsuit did cost the government close to EUR 80,000.

In a response to a Written Question by Domscheit-Berg (page 91), the government later confirmed that these costs were legal fees to the law firm employed in the BfR litigation, minus EUR 1,559.46 in fees recovered from the MDR as the losing party. Original reporting of the lawsuit was done by netzpolitik.org.

To a certain degree, this lawsuit resembles a number of other cases where copyright is used by the German government to prevent or at least stall the dissemination of documents into the public sphere, sparking criticism. Reporters without borders criticise this litigious behaviour, as copyright is not designed to suppress unwanted reporting.

MP Domscheit-Berg has called for a copyright reform regarding official works (§5 UrhG) to generally release works by the German government into the public domain. A full statement can be found here.

In all this the CJEU Afghanistan Papers case remains pending.