Following 12 years of legal proceedings, on 24 March 2026 the Federal Constitutional Court ruled that the state of Baden-Württemberg could not impose a statutory obligation on academic staff to republish their work. This decision has not only direct implications for university statutes based on state legislation. It also raises further questions concerning the position of Open Access as a supposed antagonist to copyright. Lea Sophie Singson, FIZ Karlsruhe and “Legal Eagle” with the FAIRagro Helpdesk (TA 2) summarises the background to the decision, its content and the outstanding issues.
The requirement for secondary publication as set out by Baden-Württemberg
In the spring of 2014, the state of Baden-Württemberg introduced Section 44(6) of the State Higher Education Act (LHG BW). This required universities to oblige their staff and students to re-publish their academic works one year after their initial publication. The state’s idea of creating a re-publication requirement has its origins in Section 38(4) of the Copyright Act (UrhG). Under certain circumstances, this allows authors of an academic article to make the manuscript version publicly available after twelve months, even if they have transferred the exclusive right of use to the original publishing body. The UrhG thus supports open access initiatives in academia. The University of Konstanz complied with the requirement to establish a secondary publication obligation in its statute.
A statute contains binding provisions set out in writing. It is adopted by a legal entity under public law and applies to all members of that legal entity. Thus, a university constitution is adopted by the Academic Senate and applies to the members of the respective university.
The background to the decision: the legal dispute before the Administrative Court
Some professors raised objections to the provisions in the Higher Education Act of Baden-Württemberg (LHG BW) and the statute. They challenged the statute before the Administrative Court. They argued that the obligation to republish constituted an impermissible interference with the fundamental right to academic freedom under Article 5(3) of the constitutional law.
The legal counsel for the University of Konstanz argued against this and in favour of the statute and the Baden-Württemberg law: the university had not infringed any copyright, but had merely regulated the exercise of the right to secondary publication under the Copyright Act for those in its employ. The provision did not concern the free accessibility of copyright-protected works, but rather the information in the public domain contained therein. On the basis of this argument, the legal counsel for the University of Konstanz saw no issue with an encroachment on the federal government’s legislative competence, as the provision did not concern copyright law in the strict sense.
The Administrative Court stayed the proceedings and referred the matter to the Federal Constitutional Court for a specific review of the provision.
In a specific review of the constitutionality of a provision, the Federal Constitutional Court examines the compatibility of a provision with fundamental rights and constitutional law on the basis of a referral from a specialised court in the course of its ongoing legal proceedings.
The Second Senate of the Federal Constitutional Court then had to answer the formal question: Did the State of Baden-Württemberg even have the legislative competence to enact a provision stipulating an obligation to republish?
Legislative competence is regulated in the constitutional law in Articles 70 to 74. The constitutional law generally provides for the possibility that the states, the Federal Government, or both may enact laws on a specific subject. In certain areas, only the Federal Government may enact laws. This is also the case in the field of copyright law.
The Federal Constitutional Court on the obligation to republish
The Federal Constitutional Court has now ruled in its decision: No, the State of Baden-Württemberg should not have enacted such a provision, as the regulation of an obligation to republish concerns the field of copyright and may therefore only be governed by federal law.
The Court regards the Baden-Württemberg provision – unlike the legal representative of the University of Konstanz – as a copyright provision, because the obligation to republish set out in Section 44(6) of the Higher Education Act of Baden-Württemberg (LHG BW) governs the exercise of the copyright right to republish and replaces the freedom of choice afforded to authors by that right with an obligation.
According to the court, this substantive effect of the law was decisive in classifying the Baden-Württemberg provision as a copyright provision.
These questions remain unanswered
It remains unclear whether the provision unlawfully interferes with the fundamental right to academic freedom under Article 5(3) of the constitutional law. This fundamental right also encompasses freedom of publication – that is, the right to determine the framework conditions, such as the journal, timing and publisher, and also to decide against publishing one’s own academic findings. The Federal Constitutional Court did not reach a decision on this question in its ruling; the review ended after the formal constitutionality of the provision was rejected.
Nor did the Federal Constitutional Court rule on the consequences of the unconstitutionality of the Baden-Württemberg provision for the University of Konstanz’s statute. Whilst statutes are not formal laws, they nevertheless have normative, i.e. law-like, effects. Furthermore, statutes must, of course, not contain any provisions that are unconstitutional. Consequently, the provision in the statutes concerning the obligation to republish is also likely to be null and void.
Consequences for Open Access Policies and Related Matters
The Federal Constitutional Court’s rejection of a provision under state law governing publication under copyright law could lead to calls for the matter to be regulated under federal law. This is, however, difficult, as legislative competence for professional requirements relating to academic staff lies with the federal states pursuant to Article 70(1) of the constitutional law. This highlights the general regulatory problem in areas that concern both academia and copyright law.
The presumed implications for the University of Konstanz’s statutes also raise the question of whether the consequences of the Federal Constitutional Court’s decision must also be applied to open access policies. Here, perhaps, a cautious reassurance: open access policies are likely to remain compatible with the law and the constitution. This is because a policy, in terms of its legal binding force, must be distinguished from a statute. Unlike statutes, policies typically contain only recommendations, guidelines or standards. They are therefore – subject to possible individual cases – not legally binding in the same way as a statute.
Implications for open access clauses in employment contracts?
In practice, it may also happen that open access issues are regulated in an employment contract. In this regard, there are at least no concerns regarding the employer’s authority to regulate copyright matters within an employment contract – this is standard practice. An interesting and as yet unresolved question, however, is whether an employer can contractually oblige an author to republish their work in open access. This gives rise to the potential for a conflict between the provision in the employment contract and the right to secondary publication under Section 38(4) of the German Copyright Act (UrhG). This is because the author’s right to secondary publication may not be waived to their detriment. Admittedly, an obligation to publish a work in Open Access does not constitute a classic negative derogation from the right to secondary publication. Ultimately, however, an obligation to republish does have effects that could affect the exercise of the right to republish. It remains to be seen whether these and other questions regarding the right to republish will be clarified by the courts in future.
Note: This article was originally published on iRights.info and is licensed under CC BY 4.0.