Today, 26 September 2017, the Verwaltungsgerichtshof (VGH) Mannheim considered an application for judicial review regarding the regulations on secondary publication rights of the University of Konstanz, the “Satzung zur Ausübung des wissenschaftlichen Zweitveröffentlichungsrechts”.
The court has not announced a verdict yet. The application for judicial review was filed by 17 University of Konstanz teachers. The decision on the regulations from 10 December 2015, which obliges all University of Konstanz researchers to exercise their right to secondary publication, will be delivered in writing. Judging by what was said in court today, the case will be referred to the Federal Constitutional Court in Karlsruhe. The Verwaltungsgerichtshof expressed doubt that § 44 para. 6 LHG, upon which the regulations are based, falls within the legislative purview of the state of Baden-Württemberg. Furthermore, the Verwaltungsgerichtshof did not raise any concerns in regard to the contents of the regulations.
The University of Konstanz will continue to keep the public informed about the progress of these proceedings.
The Konstanz regulations on secondary publication rights “Satzung zur Ausübung des wissenschaftlichen Zweitveröffentlichungsrechts” are based on the “Landeshochschulgesetz Baden-Württemberg” (state law on higher education), which, in § 44 para. 6, calls on the universities to oblige their researchers to exercise their secondary publication rights. With its regulations “Satzung zur Ausübung des wissenschaftlichen Zweitveröffentlichungsrechts”, the University of Konstanz was the first university to implement the state law.
The law (§ 38 para. 4 Urheberrechtsgesetz (copyright law)) came into effect on 1 January 2014. It guarantees authors who have previously published their work in scientific journals a secondary publication, even if publishers have been contractually granted exclusive copyrights. This applies only to scientific publications that were financed at least 50 per cent with public funds and were published in periodicals. Monographs are exempt from these provisions.