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Can secondary publication rights be compulsory?

Federal Constitutional Court to clarify whether regulation conforms to the German constitution

The administrative court in Mannheim seeks clarification on the question of whether the legal norm of the Landeshochschulgesetz (state law on higher education) underlying the University of Konstanz regulations is in conformity with the German constitution.

Following the oral proceedings on 26 September 2017, the administrative court "Verwaltungsgerichtshof (VGH) Mannheim" suspended the proceedings on the legal validity of the University of Konstanz regulations on secondary publication rights "Satzung zur Ausübung des wissenschaftlichen Zweitveröffentlichungsrechts". In the opinion of the 9th senate, the judicial panel dealing with the proceedings, the legal norm of section 44 paragraph 6 of the Landeshochschulgesetz LHG (state law on higher education) pertains to the field of "copyright". This means that a federal court would have been the competent authority. As the legal validity of the University of Konstanz regulations, which are based on this legal norm, depends on whether the relevant section of the LHG actually conforms to the German constitution, the proceedings had to be suspended and the question will go before the Federal Constitutional Court.

"We are very pleased that the Federal Constitutional Court will decide whether this is a case of copyright and thus whether the federal court or the state of Baden-Württemberg is responsible. This will provide legal clarity and a framework for us to work on future-oriented issues such as free access to scientific publications", Rector Professor Ulrich Rüdiger comments on the court decision.

In its decision, the 9th senate of the administrative court states that the validity of the University of Konstanz regulations depends on whether the norm of section 44 paragraph 6 LHG itself conforms to the German constitution. The reasoning of the court does not refer to a violation of the basic right to academic freedom, but questions the jurisdiction of the state of Baden-Württemberg. In the senate's opinion, the federal court is responsible for deciding on this norm as the norm pertains to the field of "copyright", a field that falls within the exclusive competence of the federal court as per article 73 paragraph 1 no. 9 of the German constitution. Although some parts of the norm relate to public service law and higher education law, for which the state is responsible, the senate holds the main focus to be on copyright.

In an interlocutory procedure, the Federal Constitutional Court will evaluate whether section 44 paragraph 6 of the LHG is compatible with the German constitution. The paragraph obliges researchers to exercise their right to non-commercial secondary publication.

Seventeen university teachers at the University of Konstanz had challenged the regulations obligating the university's researchers to exercise their secondary publication rights. The judicial review on the legal validity of the regulations from 10 December 2015 will be suspended until the Federal Constitutional Court makes its decision.

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