What's the catch with free copyright law

Open knowledge activists publish content of the Federal Law Gazette: For the first time open laws for Germany?

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Guest contribution by Prof. Dr. Daniel Hürlimann and Dr. Dr. Hanjo Hamann

12.12.2018

The Open Knowledge Foundation wants to "make central content of democracy freely accessible for the first time". And expects a copyright lawsuit by the Bundesanzeiger-Verlag. It would not be successful, say Daniel Hürlimann & Hanjo Hamann.

Germany has had open laws for the first time in a few days. "Open" in this sense, according to the definition of the Open Knowledge Foundation, is such "content, information or data that people can freely use, process and distribute", namely "without legal, technical or social restrictions". The non-profit organization, which claims to be committed to open knowledge and its dissemination, published the entire content of the Federal Law Gazette (BGBl) on Monday at OffeneGesetze.de.

So far there has not been so much openness to the German laws: Although at least the formal main laws of the federal government can be viewed mainly under Rechts-im-Internet.de, only in the currently consolidated version without official binding force - not to mention amending laws or substantive laws ( Regulations). A search function and offers for digital re-use (e.g. downloading all laws for text and data mining, i.e. automated analysis for scientific research) only exist in rudimentary form.

The official versions of the law, as Rechts-im-Internet.de expressly points out, "can only be found in the paper version of the Federal Law Gazette". Only when a law is published there can it come into force in accordance with Article 82 (2) of the Basic Law. But with the imprint alone, laws are not already "open" in the sense cited above. Therefore all promulgated laws - not only consolidated main laws - can be viewed online at BGBl.de in a "free citizen access". The catch: BGBl.de belongs to the Bundesanzeiger-Verlag, a 100 percent subsidiary of the DuMont media group - better known from the local tabloid press (BZ, Express, Frankfurter Rundschau, Hamburger Mopo, Live!). And the media company does not allow its users more than a glimpse into German law.

Copyright-like database protection on copyright-free documents?

The official announcement media of the federal government have belonged to the publishing house M. DuMont Schauberg for twelve years. It allows citizens to take a digital look at their legal gazette, but asks them to pay for all other uses: printing, searching through full texts, copying or further processing sections of text, downloading files collectively, linking them stably, calling them up with programming interfaces - these are just some of the elementary functions that the Open Knowledge Foundation had previously missed when it came to BGBl. citizen access. Until now, even scientists who wanted to work digitally with the legal gazette had to dig into the digital bag of tricks.

According to media reports, the association now thinks it is "possible that the [Bundesanzeiger] publisher will warn the Open Knowledge Foundation for infringement of copyright law, which would enable this question to be clarified in principle".

"This question" preoccupied the Federal Court of Justice (BGH) more than ten years ago (ruling of September 28, 2006, Az. I ZR 261/03): contradict German regulations according to which private publishers obtain database protection similar to copyright-free documents can, European law? According to Section 87b (1) of the Copyright Act (UrhG), the manufacturer of a database has the exclusive right, in particular, to duplicate and reproduce the database. But what if their content is not subject to copyright at all? This is precisely what applies, according to Section 5 (2) UrhG, to "official works", in particular insofar as they are "published in the official interest for general information" - including laws.

The BGH therefore said that a publisher's database that fulfills a publication task "based on a contractual agreement" with the state, which "otherwise the [state] would have to do directly", is official and thus in the public domain - unlike when the official works used have already been used were "published elsewhere", as in the case of secondary collections of laws (e.g. Lexetius). This differentiation, however, is lacking in the European requirements for database protection (there is no limit regulation). The BGH therefore had to submit its opinion to the ECJ for a preliminary ruling in September 2006 - ironically a few days before the Federal Gazette fell to DuMont. This decision was never made because the revision was withdrawn, which is why the question remains unanswered and lively controversial to this day. There are roughly the same number of well-known supporters for and against who exchange considerable dogmatic arguments.

Database protection: protects the link with metadata

Ultimately, however, it must depend on the purpose of the database protection: According to § 87a UrhG, this explicitly protects the "investment that is essential in terms of type or scope". Its purpose can be derived from this, to encourage the creation of so-called non-creative databases through investment protection.

The essence of a non-creative database, however, lies in the ingenious linking of content, which is why Thomas Fuchs, an expert in the field of legal databases, already explained in 2007 that "the protected result of the investment is neither in the database embodied on a carrier medium nor in the data rather, the assignment of data to metadata is protected if the metadata requires a substantial investment. " Only the link with metadata, i.e. additional information, justifies database protection.

One can imagine a database like Luhmann's legendary card box at Bielefeld University: Anyone who removes parts of it, including the order codes, cross-referenced filing system and drawer labels, violates the sociologist's database rights. Unlike the one who takes all the papers out of the drawers and builds a new filing cabinet with its own filing system for it: He "only" violates Luhmann's copyright on his papers - a copyright that does not exist for laws.

Data and metadata re-linked, laws openly accessible

So what does the filing cabinet from OffeneGesetze.de look like? Anyone who downloads the same Federal Law Gazette edition - let's take the very first as a test: the Basic Law of 1949 - from both OffeneGesetze.de and BGBl.de in PDF format will first notice the very different structure of the download addresses and menu structures on both websites. This indicates different systems of linking data and metadata.

The Adobe file viewer allows a closer look with the key combination Ctrl + D: Where BGBl.de has added almost no metadata to the document (title empty, keywords: "created for citizen access on [current date]") can be found at OffeneGesetze.de a title ("BGBl Part I No. 1 year 1949") and other keywords ("Official work according to §5 UrhG openegesetze.de"). OpenGesetze offers where BGBl.de uses the software "Adobe Acrobat 7.05" via "PDFlib + PDI 7.0.5 (JDK 1.8 / Linux-x86_64)" to create a PDF document of version 1.6 (Acrobat 7.x) without a fast web display. de a pdf document created with "Adobe Acrobat Pro DC 18 Paper Capture Plug-in" in version 1.3 (Acrobat 4.x). It has fast web display and links the document's image data with invisible text that allows the document to be searched.

These indications clearly indicate that the Open Knowledge Foundation not only tapped data-metadata links from the Bundesanzeiger-Verlag, but also created new files in its own work processes - enriched with metadata, better compatible and optimized for online use. As a result, there is no interference with the database law, so a lawsuit against the association should have no prospect of success. By creating contemporary, open access to laws with OffeneGesetze.de, the volunteers take on a task that would actually be the responsibility of the state. The federal government and its taxpayers should show their appreciation.

Prof. Dr. Daniel Hürlimann is assistant professor for business law with a focus on information law at the University of St.Gallen and editor of the legal open access journal sui-generis.ch.

Dr. Dr. Hanjo Hamann is a research associate in Bonn and has been dealing with the free availability of official works in publications and edition projects for several years.