Texts of laws must be freely available, not locked away by copyright; in Germany, many still aren’t

It is often said that “ignorance of the law is no defence”. But the corollary of this statement is that laws must be freely available so that people can find them, read them and obey them. Secret laws, or laws that are hard to access, undermine the ability and thus the willingness of citizens to follow them. And yet just such a situation is found in many countries around the world, including Germany, as a post on the Communia blog by Judith Doleschal from the FragDenStaat (“Ask the Government”) organisation describes. It concerns what are known as “law gazettes”. These are crucial documents that define German regulations for a wide range of areas such as work safety, health insurance tariffs, directives on the use of police tasers or guidelines for pesticide applications. They are not primary legislation, but they are nonetheless legally binding, which means that they should be freely available to anyone who might have to obey them. They are not, for reasons explained by Doleschal:

The [German] Federal Ministry of the Interior is the editor of the gazette. However, it is published by a private publishing house owned by the billion-dollar Wolters Kluwer group. Wolters Kluwer charges €1.70 per 8 pages for individual copies of the documents. If you were to buy all official issues of the [Federal Gazette of Ministerial Orders] with a total of 63,983 pages individually from the publisher, it would cost a whopping €13,596.

Given the healthy profits such pricing presumably generates from material that is provided by the German government, the publisher is naturally unwilling to allow anyone else to provide free access to these official documents. The reason why it can do that is interesting:

[The publisher] doesn’t hold the copyright to the official documents. Instead, it argues that the database of the law gazette is protected under related rights („Leistungsschutzrecht“ in German).

This Leistungsschutzrecht is also known as an “ancillary copyright”, and is a good demonstration of how fans of copyright try to spread its monopoly beyond the usual domains. Whether to create a new Leistungsschutzrecht was one of the important battles that took place during the passage of the EU’s Copyright Directive, discussed at length in Walled Culture the book (free digital versions available). In that instance, it resulted in a new ancillary copyright for newspaper publishers that is another example of yet more money being channelled to the copyright world simply because they were able to lobby for it effectively. As usual, there is no corresponding benefit for the public flowing from this extension of copyright. In the case of the Leistungsschutzrecht claimed by the publisher of the German law gazettes, it results in a ridiculous situation:

the state publish[es] binding regulations in documents that are in the public domain, but still not publicly available without a paywall. A private billion-dollar publisher earns money referring to an alleged investment protection for the database. An absurd construction, but still quite convenient for the [German] Federal Ministry of Interior as it has zero costs and hardly any effort for the publication.

An absurd situation indeed, and one that FragDenStaat wants to change:

We at FragDenStaat are willing to take the risk of being sued for the publication of the law gazette as we believe that official documents of general interest belong in the public domain – not in the hands of private publishers. Free access to documents is not only lawful, but also necessary. So by publishing the most important state databases, we make available to the public what is already theirs. We will continue to open up more public databases in the next months.

That’s a laudable move, and one that everyone who cares about a society based on the rule of law, and therefore on publicly-accessible laws, should support. The publisher currently benefiting from this unjustified monopoly will doubtless fight this attempt to open up the German law gazettes, but FragDenStaat is optimistic, because it has managed to change official behaviour before:

Four years ago our campaign „Offene Gesetze“ („Open Laws“) helped freeing the Federal Law Gazette in the same manner. All laws of the Federal Republic of Germany are published in the Federal Law Gazette. Laws only come into force when they are published there. Back then, the publisher was the Bundesanzeiger Verlag, which was privatized in 2006 and belongs to the Dumont publishing group. Anyone who wanted to search, copy or print out federal law gazettes needed to pay .

After we published the documents as freely reusable information, the Federal Ministry of Justice decided to publish the Law Gazette on its own open platform.

It’s great to see brave organisations like FragDenStaat righting the wrongs that copyright has enabled by locking up key public documents behind paywalls. But it is outrageous that it needs to.

Featured image by Daderot.

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