Germany’s Shocking Court Ruling Strikes Down Open Access Mandate—What This Means for Academic Freedom and Research Worldwide
The Constitutional issue arose from the fact that in Germany (as in the US), copyright is a federal, constitutional matter and Lander (states) are not allowed to pass laws in conflict. This was an easier question legally than sorting whether federal copyright law could, in itself, require authors to post versions in repositories. That would be a novel imposition in derogation of copyright and one which would require a careful review of national law — including takings clauses — and international treaty obligations. The German Court also thereby managed to sidestep the thorny issue of how to address the SPR where there are multiple authors, only some of whom are covered by the deposit obligation.
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