20200502 BGH stützt die Pressefreiheit

On the one hand, and on the other...

On the one hand, we must praise the Federal Court of Justice (BGH) for rapping the state on the fingers and rejecting a copyright of the BMVg on the Afghanistan papers. On the other hand the question was not clarified that files of authorities have to be public (if they are not to be secret for really good reasons).

Protect private data, use public data

In order to enforce this principle in the area of public data, the plaintiffs went as far as the EUGh, in a case to enforce the publication of the so-called Afghanistan papers. The state did not plead for military secrecy, which would have gone wrong with these papers. No, the argument was that the papers were subject to the copyright of the authorities who wrote them.

All in all, the EUGh had already shown positive tendencies last year in preliminary ruling proceedings in the judgments C-469/17 (Funke Medien), C-469/17 (Funke Medien), C-516/17 (Spiegel Online) and C-476/17 (Pelham).In the first two proceedings, the Federal Court of Justice has now upheld freedom of the press in its final decision: the disputed publications by the press were legal! So now the situation reports on the years of unsuccessful war deployment, which have become known as Afghanistan papers, are again available on the FragdenStaat website.

Thus, these two cases have been decided positively, but the court has shirked its duty to determine whether military situation reports can be protected by copyright at all. This means that the judgement cannot be generalized to other freedom of information cases and the persons concerned must in any case take the legal action that has been going on for years.

For this reason, FragDenStaat, Wikimedia, the German Association of Journalists, Reporters Without Borders and the trade union ver.di have called on the responsible Ministry of Justice to make use of the upcoming copyright reform and clearly exclude copyright protection for state works. So far, they have not responded to this.

In the 2nd case C-516/17 (Spiegel Online) , the BGH also decided that a press organ may quote from a published book by a politician for daily reporting. In both cases, the court invoked the copyright barrier for daily reporting under Section 50 UrhG, which implements Article 5 (3) c) of EU Directive 2001/29 on Copyright in the Information Society and thus restricts the author's copyright.

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