Background on Secondary Publication Rights in German Copyright Law
Open access publishing has transformed scholarly communication over the past decade, allowing researchers to share findings more broadly without paywalls. Central to this movement in Germany is the concept of secondary publication rights, formally established in Section 38 paragraph 4 of the German Copyright Act (Urheberrechtsgesetz or UrhG). This federal provision grants authors of qualifying scientific works the right to make their accepted manuscript version publicly available online for non-commercial purposes twelve months after initial publication, provided the research received at least fifty percent public funding and appeared in a periodically issued collection.
The right balances authors' interests with broader public access goals. It applies specifically to short scientific contributions and does not override exclusive publishing agreements entirely but carves out space for green open access routes. Universities and research institutions across Germany have encouraged voluntary use of this right to boost open access rates without mandatory enforcement.
The Challenged State-Level Mandate in Baden-Württemberg
In 2014, Baden-Württemberg introduced Section 44 paragraph 6 into its Higher Education Act (Landeshochschulgesetz or LHG). This provision authorized higher education institutions to adopt bylaws obligating researchers to exercise their secondary publication rights under the federal copyright law. The University of Konstanz became the first and only institution to implement such statutes, requiring staff to deposit qualifying publications in open access repositories after the embargo period.
The mandate aimed to accelerate open access adoption within the state's public universities. Proponents viewed it as a practical step toward making publicly funded research freely available. However, seventeen academics at the University of Konstanz challenged the bylaws, arguing they infringed on academic freedom protected under Article 5 paragraph 3 of the Basic Law.
Details of the Federal Constitutional Court Ruling
On March 24, 2026, the Second Senate of the Federal Constitutional Court issued its order in case 2 BvL 3/18, declaring Section 44 paragraph 6 of the Baden-Württemberg Higher Education Act incompatible with the Basic Law and therefore void. The press release followed on April 28, 2026. The court determined that the state lacked legislative competence because the regulation pertains to copyright law, an area of exclusive federal authority under Article 73 paragraph 1 number 9 of the Basic Law.
The decision emphasized that obligating authors to exercise their secondary publication rights constitutes a limitation on copyright protections. While the federal provision creates a voluntary right, the state law effectively turned it into a duty through institutional bylaws, removing authors' discretion over whether and how to utilize it. This substantive interference with authors' rights in their intellectual creations falls squarely within federal copyright jurisdiction.
Legal Reasoning and Constitutional Principles
The court carefully distinguished between higher education law, where states hold competence, and copyright matters reserved for the federation. Although the provision targeted university researchers and aimed to promote knowledge dissemination, its core effect regulated the exercise of authors' exclusive rights. The ruling reaffirmed that restrictions on intellectual property rights require justification through careful balancing of creators' moral and economic interests against public policy objectives.
Academic freedom arguments raised in the challenge received indirect support through the competence analysis, as forcing publication choices could constrain researchers' autonomy in deciding dissemination methods. The 6:2 decision underscored the importance of maintaining clear boundaries between federal and state powers in intellectual property matters.
Immediate Impacts on Universities and Researchers
Following the ruling, the University of Konstanz's open access statutes lost their legal foundation. However, university leadership noted that research practices remained unchanged because the bylaws had never been actively enforced during the prolonged legal proceedings. Voluntary open access deposits continue at high rates, with Konstanz maintaining its position as a national leader in open access publication shares according to rankings such as the CWTS Leiden Ranking.
Other Baden-Württemberg universities that had considered similar measures now face clearer legal limits. Researchers retain the federal right to secondary publication but cannot be compelled by state institutions to exercise it. This outcome preserves individual choice while highlighting ongoing tensions between institutional open access goals and personal academic freedoms.
Broader Implications for Open Access Policies in Germany
The decision signals that mandatory secondary publication obligations at the state level are constitutionally impermissible without federal legislation. Policymakers interested in strengthening open access may need to pursue amendments to the federal Copyright Act or develop incentive-based approaches rather than obligations. Voluntary frameworks, repository support services, and institutional repositories remain viable tools for advancing open access.
Germany's existing federal secondary publication right continues to operate as a key enabler for green open access. Institutions can still encourage uptake through awareness campaigns, funding requirements for new grants, and integration into promotion criteria without crossing into mandatory territory.
Reactions from Stakeholders in Scholarly Publishing
University administrators expressed disappointment from an open access perspective but welcomed the legal clarity. The rector of the University of Konstanz highlighted that high voluntary compliance rates demonstrate strong researcher support for open dissemination when supported by robust infrastructure. Publishers and rights organizations noted the ruling's alignment with established copyright principles that protect authors' decision-making authority.
Academic researchers involved in the challenge viewed the outcome as a victory for freedom of research, arguing that publication venue and timing decisions should remain with authors. Library and repository managers across Germany are reassessing strategies to promote secondary publication through non-mandatory means.
European and International Context
The German ruling carries potential implications beyond national borders. Discussions around harmonized secondary publication rights at the European Union level must now account for the competence distinction emphasized by the court. Any EU-wide mandate would likely need grounding in copyright frameworks rather than research or education policy alone.
Comparative approaches in other countries, such as rights-based models in Austria or deposit mandates elsewhere, continue to evolve. The German case illustrates the challenges of layering institutional obligations onto existing copyright rights and may inform future policy design in the European Research Area.
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Future Outlook for Secondary Publication and Open Access
Looking ahead, German universities are expected to double down on supportive measures such as dedicated open access funds, diamond open access publishing platforms, and training programs that empower researchers to exercise their rights voluntarily. Federal initiatives could explore expanding or clarifying the scope of Section 38 paragraph 4 UrhG to address evolving publishing landscapes including transformative agreements and preprint servers.
The ruling does not diminish the momentum toward open science but redirects efforts toward collaborative, rights-respecting strategies. Stakeholders anticipate continued growth in open access shares through cultural shifts and infrastructure improvements rather than top-down mandates at the state level.
Practical Guidance for Researchers and Institutions
Researchers in Germany should familiarize themselves with the federal secondary publication right and consult institutional open access officers for guidance on compliant deposits. Key steps include verifying eligibility based on funding sources and publication type, preparing the accepted manuscript version, observing the twelve-month embargo, and ensuring proper attribution to the original source.
Institutions can strengthen voluntary programs by offering repository hosting, metadata support, and recognition for open access contributions in evaluation processes. Monitoring developments at the federal level will be essential for adapting policies effectively.
