On March 24, 2026, in response to a lawsuit by seventeen academics, a German Court ruled that a mandatory article manuscript deposit requirement imposed by the German State of Baden-Württemberg on researchers working or affiliated with educational institutions within the state was void ab initio. The plaintiffs had alleged that the deposit requirement infringed their rights, including the rights to free expression and academic freedom.
This case arose out of the German Copyright Act and relates to the so-called right to “secondary publication right” or “SPR.” SPR, which is currently under consideration by the European Commission, is a bit of a misnomer. SPR essentially provides that an author of a scientific article cannot legally convey exclusive rights in an article without retaining a right to also post the article online, typically in the accepted manuscript form some months after initial publication.
For example, § 38(4) of the federal German Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG) provides an SPR for authors of academic papers resulting from research that is at least 50% publicly funded and published in a collection (i.e., a journal) appearing at least twice a year. Under this federal law, authors retain the right to make papers in accepted manuscript versions publicly available for non-commercial purposes 12 months after the initial publication, even if they have granted the publisher exclusive rights.
While SPR is styled as a “right,” it is actually a limitation on rights. Under copyright law, an author has the right to post her work, license her work non-exclusively, or license her work exclusively for defined purposes (note that German law differs from US law in that authors may never fully divest themselves of copyright. In practice, an exclusive license corresponds to a US law transfer of rights). SPR limits the last right. While one could argue that, given the economics of journal publishing (in which authors are typically not paid), SPR benefits the authors, it is worth analyzing this further. First, imagine that for any other content, the state limited your freedom to contract such that you could not safely grant exclusive rights. It would be hard to get a book published or film made under those circumstances. While many journal publishers allow some archiving of accepted manuscripts, SPR removes discretion and limits choice.
As can be seen in the Baden-Württemberg case, what begins as “author protection” can quickly become an author obligation. The plaintiffs did not object to the seemingly benign “rights retention” until it morphed into de facto (if not de jure) “rights removal.” Many in our industry believe that the imposition of a deposit obligation is the ultimate if unstated goal of many SPR advocates.
As the Court in Baden-Württemberg noted, it is one thing for SPR to prevent authors from exclusively giving their rights to publishers and wholly another to then mandate the exercise of those rights as a condition of employment or affiliation. As set forth in the English-language press release of the Court: “That the addressees of the provision are limited to persons involved in higher education does not alter the fact that the affected persons are called on to exercise their legal rights to secondary publication which belong to them as authors of the relevant academic papers.” Whatever the intentions, SPR is mainly going to contribute to the degradation of the record of science. It does not deliver the reader to the authoritative version of record. It competes with gold road as a flawed path to OA. It creates version-control risks. And it increases the likelihood of indiscriminate use in AI systems.
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.
This leads to the European Commission’s fascination with SPR. Advocates are not pushing for SPR so that authors have a new “right;” they are doing it to feed mandated repositories. If the EU ultimately concludes that SPR serves some valid purpose and pushes this concept on EU member states, we will certainly see a lot more litigation. As of today, Round 1 goes to the academics.
