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.
Discussion
24 Thoughts on "Academic Freedom for the Win; Open Access Mandate in Germany Declared Unconstitutional"
I find the framing of this ruling as a victory for “Academic Freedom” to be deeply misleading. As the author points out, the plaintiffs objected to a mandate tied to institutional affiliation. However, the argument that this infringes on academic freedom ignores a fundamental principle of public science: research conducted with significant public or institutional support is a public good, not a private asset.
This ruling is less about the “freedom” of the scientist and more about the protection of the existing economic model of scholarly publishing. When an institution provides the salary, infrastructure, and funding that enables the research, it is not a “restriction of freedom” to ask that the resulting manuscript be made accessible to the community that paid for it. In fact, the true restriction of freedom lies in the current system, where the public pays for research and then must pay again to access the results.
To frame a mandate that gives the public access to publicly-funded work as an “obligation” that infringes on rights is a distortion of the social contract. I would argue that the mandate is simply the acknowledgement of the support received. The “choice” that Mr. Kaufman laments is the choice to privatize publicly-funded knowledge. This decision prioritizes the economic interests of a few publishers over the advancement of science and the fundamental human right to access information and participate in scientific progress. By allowing authors to lock away publicly-funded work, the court has chosen a narrow definition of “freedom” for the researcher over the broader freedom and benefit of society.
Furthermore, the article defends the status quo by pointing to issues like “version-control risks” and “indiscriminate use in AI.” These are practical challenges that can and should be solved through better metadata, infrastructure, and clear licensing, not used as a justification to keep research behind paywalls. The risk of “degradation of the record of science” seems far greater when a significant portion of the global research output remains inaccessible to a large part of the planet. The court may have won a battle for academic authors, but it has lost a crucial war for the public interest. A more accurate title for this piece would be: “Economic Interest Wins; Public Access to Publicly-Funded Research Dealt a Blow in Germany.”
To frame a mandate that gives the public access to publicly-funded work as an “obligation” that infringes on rights is a distortion of the social contract.
Sergio, can you clarify what “social contract” you’re referring to here? It sounds to me like you’re invoking a vaguely defined obligation that you believe researchers undertake when they accept public funding, an obligation that may be understood differently by other, equally well-informed people operating in good faith. But I may be mistaken, so I’m wondering if you’re referring to something more specifically defined elsewhere.
Now I’m having flashbacks to the early days of The Scholarly Kitchen.
First, it’s important to recognize here that what we’re talking about (at least outside of the Humanities) is not access to the results of funded research, rather it is access to the stories written about publicly funded research. As I wrote way, way back in 2013 (https://scholarlykitchen.sspnet.org/2013/08/06/is-access-to-the-research-paper-the-same-thing-as-access-to-the-research-results/) for a Humanities researcher, the argument, the analysis is the what comes out of a research effort. In the sciences, however, the result isn’t the paper. For someone trying to find a cure for a disease, the result is the cure, not the paper written about the cure.
If one follows your logic to its obvious conclusion, funded research should be considered “work for hire” and owned by the funder, not the researcher or their institution, and they should receive no intellectual property rights in their own discoveries or writings. I suspect that few universities would be willing to give up their patent portfolios and shut down their technology transfer offices, and few science researchers willing to abandon the startup companies they’ve spun off from their work. We also know that most pharma companies, for example, won’t invest time and effort in developing a new drug unless they have exclusive rights to that drug for an initial period, so eliminating patents based on funded research may actually slow drug development more than enable it.
It is also perhaps worth considering the costs of bringing a manuscript to the acceptance stage, the point where these demands for author rights are being requested. Believe it or not, there are costs involved in the editorial and review process. Increasingly, we see funders creating policies that forbid any sort of payment for these activities (the latest being the US government — https://scholarlykitchen.sspnet.org/2026/06/15/guest-post-the-us-governments-new-guidance-for-federal-grants-and-the-case-for-scholarly-societies/). If the end product must be given away for free, and no funds are available to bring the paper to the desired stage, how is this supposed to work?
And for what it’s worth, the press I run, which is part of a non-profit research institution, has a policy that allows authors with funder requirements to post their accepted manuscript in the required repository at no cost.
I don’t disagree with your point about phrasing this as a win for academic freedom per se, but I nonetheless disagree with any claim that the funder has a right to any research paper generated from work they funded, unless that is spelled out clearly in the original funding application and grant award. What they might own, what one could certainly argue that they own, is the results of the research and the data, perhaps even the analysis. But any research paper is the work of the author and an “author” not as a “researcher”. If the government agencies that fund research want to exert control over the data sets and computational analyses to post them in a public forum, that’s one thing. Telling authors after the fact that they also own any papers published to explain the analysis is another matter. That is going to have to be part of the funding deal going in before I would agree that such a right is enforceable.
So academics want the right to forbid their institution holding a copy of their publications in a repository, which anybody wanting a copy of – rather than just reading it – have to ask them for permission anyway? This is the way in which academics can tie themselves up in knots and fail to see the larger picture – which is how to build a scholarly and collegial community that is able to read and debate. This is a particular German argument that goes back a century and a half and is out of step with modern developments, particularly the commercial publishers (who capture author IP incidentally) and the need to foster non-commercial options – like institutional repositories!
In connection with this development, readers may also be interested in the discussion around my 2018 post on “Open Access, Academic Freedom, and the Spectrum of Coercive Power.”
Dear Sergio, you make ample use of the right of free expression. The Plaintiffs in the German Constitutional Court matter discussed based one leg of their argument on pre-emption: only the Federal government may legislate in matters of copyright. Their second argument rests on Art 5 (3) of Germany’s “Basic Law” – the German Constitution which guarantees free expression and specifically references the freedom of the arts and sciences, of research and teaching, see para 10 of the judgment (in German). The bylaw under constitutional scrutiny itself even references in its preamble this very article of Germany’s Basic Law. Consequently, the Plaintiffs argued that this freedom is violated as it includes the freedom of the staff of institutions of higher learning to decide on the modalities of publishing research results and even the decision NOT to publish research results. All of this I would consider trite and unsurprising in law, particularly when construing rights and freedoms contained in a bill of rights. In the end, the Constitutional Court ruled the offending legal provisions nil and void due to pre-emption by the German federal law of copyright. The court ruled that cloaking the offending provisions in a mix of autonomous bylaws, state employment law and a martialled public interest of accessibility of research to the general public could not save the provisions. They amount to an exception and limitation to the exclusive right of authors subsisting under federal copyright law. Copyright law has rightly been characterised as an engine of free speech, adding the fuel of interest to the fire of creativity (I am alluding here to one of Abraham Lincoln’s speeches regarding patent law). I thus cannot agree with your sentiment about the present article, nor with your preference to over-ride the authors/researchers’ exclusive rights to decide if, when, what, how and under what conditions and where to publish their intellectual expression. And yet, I support your right to express your view, as I support the right of the Scholarly Kitchen to publish this interesting contribution, a timely and relevant one for the entire field of academic and scholarly freedom – a freedom one should never take for granted and a freedom that should not depend on who funds or contributes funding to research, research results, or their publication, including in scholarly publications.
Isn’t a compulsory deposit in an institutional repository a good thing. Done correctly it dies not detract from author IP, it doesn’t transfer IP to the institution, it facilitates wider dissemination of the findings, and it is basic to almost the only current Open Access model / Green OA – that doesn’t rely on expensive reimbursement systems like Gold, Diamond etc. It seems like the only “freedom” this initiative is protecting is the right of conventional publishers to retain IP and charge for it, either as OA or subscription. Very convenient.
When we’re talking about authors’ rights, it’s very important to separate the question of deposit from the question of compulsory deposit. When an author freely chooses to deposit her work, there is obviously no infringement of her rights as a copyright holder. When she’s compelled to do so, it’s a very different matter. The normal function of copyright is to leave control over the work in the hands of its creator. Compelled deposit (or publication, or specific forms of publication) takes that control away from the copyright holder. This may be more or less desirable and justifiable in particular circumstances, but it always has the effect of undermining an author’s control over her IP — for better or worse.
Similar to my comment below, this reflects a US perspective on author’s copyright.
In my own common law jurisdiction, an employer owns copyright under our Copyright Act. In academic institutions, this is usually then assigned to authors under an IP policy. But this reflects the general attitude — which would apply to funders as well — that the person who pays has, if you like, the first right to IP. Authors only own copyright to the extent that their employer assigns it to them and, typically, as part of that assignment conditions or licensed rights may be retained, which could include some for of publication or open access mandate.
There’s a really interesting specifically German angle to this that I think a lot of people from the English speaking world aren’t familiar with. In the nineteenth century the right for academics to choose where to publish without interference from the state was a major driver of the revolutions of 1848. This was particularly true in Austria and Prussia, as there was a lot of state censorship, and control of not just existing publishers, but of the ability to become a publisher. People had their careers destroyed, were jailed and even died for this principle. When this right was won later in the century it was seen as a major achievement, and this type of case needs to be understood in that context. This is what the plaintiffs mean by “the rights to free expression and academic freedom” – the government should not be able to tell an academic where to publish.
David G., this history is pretty fascinating. I’d forgotten it went back to 1848, although I’m pretty sure these same rights were then lost ca. 1933-1945, and had to be rebuilt and re-codified again 1946 onwards? I’ve come across at least one German academic in the UK who made this argument intransigently. Paraphrasing, “German law says you can’t tell me to share my articles” RE: Green open access. Not a very persuasive argument for a researcher working in the UK, at a UK institution. Even though this case is on actual solid ground, since it’s actually about academics in Germany, I don’t find the “academic freedom” argument persuasive for Green OA or SPR at all; these methods are not about the publisher’s version of record (which includes the publisher’s value added), so arguably SPR and Green OA don’t affect the academic freedom to choose where to publish. Most publishers allow some form of sharing early versions in any case, particularly for preprints, since it’s a draft, un-peer reviewed version.
It’s worth noting that US attitudes to academic freedom are different to many other places, and that this may include the right to choose *where* you publish, not simply to have your voice heard without institutional interference. I am no expert and certainly can’t comment on the German context.
As far as I can make out, the ruling is not about academic freedom per se but rather about “freedom of decision” about publication, i.e. it’s framed around copyright law and ownership of related rights. The ruling simply says that at the Federal level an author is not compelled to publish and so a State law should not conflict with this.
Nor does the ruling say that SPR is unconstititonal, despite the way SPR is dicussed in the piece and focused on in the concluding paragraph.
But surely IP passes to the publisher or is Open Access. If it is held in an institutional repository anybody wishing to have a copy still has to ask the author and cannot appropriate the IP just by getting a copy. This attitude is frankly baffling and obtuse, and plays into the hands of the real rogues – the publishers that take IP off their authors. Institutional deposit actually protects the author’s control over their work which otherwise passes to the publisher.
Cui bono? The answer: the commercial publishers. They use the banner of “academic freedom” to promote their commercial interests. Academic freedom can only be guaranteed by providing diamond OA publishing: which is free for the reader, free for the author. Obviously there are costs that must be covered, but these costs should be reasonable. The present practice of commercial publishers is extremely costly, prevents authors without funding from publishing, an provides freedom for the publisher to do whatever they find profitable (e.g. selling the texts to AI companies).
A fascinating internal contradiction in your comment. The worst sin a publisher can commit is to sell text to AI companies to use, yet the system you propose would allow AI companies unfettered free access to that same text. Wouldn’t it be better to have these outside interests contributing financially to supporting the system of knowledge creation upon which they rely rather than all the burden falling on the academic community?
Not the access that matters. Commercial publishers move to open access too. The rights do.
CC BY NC, for instance, allows reuse for non-commercial purpose, but blocks commercial actors. I am not saying the CC is fully adequate. I say that academic freedom should free academia, and should not serve commercial interests.
There is a difference between “use” of copyrighted material and “reuse” of that material. A CC BY-NC license might prevent me from reusing that material by commercially republishing those same words in that same order or republishing those same images, but it would not prevent me from reading the work and incorporating it into my understanding of what is described and my future original writing on the subject (“using” the material).
And that’s what (at least according to the courts so far) AI companies are doing in training the LLMs. This is a legitimate “fair use” of copyrighted material, rather than a republication of that material. As noted here, CC licenses cannot constrain fair use or other copyright exemptions:
https://scholarlykitchen.sspnet.org/2025/11/03/can-a-cc-license-constrain-fair-use-or-other-copyright-limitations-or-exemptions/
Further, to most funders requiring OA for their funded researchers, CC BY-NC is largely seen as unacceptable, and CC BY is the preferred license type.
David, do you have German law sources on this? Your point (and the Lisa Janicke-Hinchcliffe piece that you are citing) are (I’m pretty sure) limited to Fair Use and US copyright law. It’s a fairly persuasive case, although I would quibble that while yes, most US court decisions have ruled that way, it’s not all of them, and it’s not exactly settled law yet. I’m not sure I want to wade into the article’s non-AI case on whether or not SPR and/or Green open access are an infringement on academic freedom yet, but I am interested to know if anyone knows where German courts are leaning on the “GenAI training is reading/already permitted within existing copyright law” debate.
I do not, and am writing from the point of view of an American publisher dealing with American laws and American AI companies. That said, the point I was making, that if you make everything Diamond OA, you’re agreeing to give away all of the content to whoever wants to reuse it, rather than potentially earning some money back from licensing that content in order to pay for publishing services and platforms. A publisher recently pitched to me the idea that AI licensing will, in the future, replace subscriptions and APCs as the primary way of funding scientific publishing. Not sure I agree, but if instead you choose instead to give everything to the AI companies, then the academy will have to cover those costs themselves.
One thing I was really encouraged to see though, from Germany, was a recent ruling that AI companies are responsible for the content their AI generates. This would seem to exempt them from the safe harbor protections seen by many online platforms:
https://the-decoder.com/landmark-german-ruling-declares-googles-ai-overviews-are-googles-own-words-and-makes-it-liable-for-false-answers/
and
https://publishingperspectives.com/2026/06/developments-in-the-u-k-and-germany-target-googles-ai-generated-summaries/
I agree that the Google AI Overviews decision is is a very interesting development. I’m particularly interested to see how the digital rights advocates who are so keen on safe harbor and Section 230 provisions for free speech respond. I concede that I’ve gone back to referring US law myself (although I work at a UK university). Squaring the circle of a free and open internet with some kind of minimum public interest / public safety law would be nice to see in any jurisdiction.
Thanks for reading my piece. My point that the CC licenses cannot place limits on what the law allows is not US-specific. But, correct, the court findings re AI company use of copyrighted text as fair use (which is not reliant on a CC license), are US-specific.
Also, if I may, no hyphen (Janicke is a middle name) and only one “c” in Hinchliffe.
Lisa, my apologies for mis-hyphening, and for the misspelling(s). I see now that I should have made a distinction between David C.’s point (at least in part about fair use) and your article (more broadly about CC licenses). It still would be interesting to know if anyone knows of the potential exceptions in German copyright law that allow or affect GenAI since Roy K.’s article is on German courts and law; is German law well aligned with the EU AI Act (2024)? Any variations, case law, etc., etc. ?
This seems like a tortured and insular argument peculiar to German history that any thoughtful academic – rather than a libertarian legalistic myopic – would find impossible to justify in modern circumstances. It is surprising that this has any plausibility in an open academic scholarly community!
