German court declares SPR provision null and void due to legislative competence issue

Last week the German Federal Constitutional Court declared that the mandatory secondary publishing right (SPR) in the Higher Education Act of the federal state of Baden-Württemberg is unconstitutional and void.

The Second Senate of the German Court declared that the Article 44(6) of the Higher Education Act (§ 44(6) LHG BW), which regulates provision on mandatory secondary publication is incompatible with the German Constitution and void. The Court determined that the rule falls under copyright law, which lies within the sole jurisdiction of the federal government rather than the states.

The contested provision had allowed universities to require academic staff to republish their scholarly articles as open access publications. However, under federal copyright law (§ 38(4) UrhG), such SPR is designed as a voluntary right of the author, not a legal obligation. By turning this right into a duty, the state law interfered with the author‘s freedom to decide whether, when, and how to reuse their work.

Despite its positive intentions for public research (wider dissemination of publicly funded research), the law remains unconstitutional because it intruded upon the federal legislative jurisdiction to make laws in the area of copyright.

The decision of the German Court clarifies that rules affecting the use and publication of academic works must be classified as copyright law. As a result, the federal states cannot impose mandatory open-access publication requirements of this kind, and any such regulation in the area of copyright must come from the federal level.

This case, which centers on the jurisdictional conflict between state and federal legislatures, may have significant implications for SPR at the European Union level.