State Geodata: Bavaria abuses copyright to restrict freedom of the press
Bavaria abuses copyright to restrict freedom of the press. Together with journalist Michael Kreil, we are taking legal action against this.
In most German states, wind turbines must be installed at least 1000 meters away from residential buildings. In Bavaria, however, the so-called 10H rule applies. This states that wind turbines must be ten times as far away from residential buildings as the wind turbine is high. At an average height of 300 meters, that's three times as far away as in other German states. Rules that massively impede the expansion of urgently needed wind energy.
In an extensive research for the daily newspaper taz, data journalist Michael Kreil used the house coordinates database to calculate how many areas remain for the construction of wind turbines under the restrictive rules. He concludes: there are far too few to meet the targeted climate goals. This information is clearly of social relevance and therefore belongs in the public domain. Against the backdrop of the ever-worsening climate crisis, citizens need to know that the expansion of more climate-friendly energy sources cannot be taken because of targets set by political parties. This is the only way they can make an informed decision in elections or get involved in civil society in a targeted way.
Because the Free State of Bavaria, instead of supporting the dissemination of this information, is already taking action with its criminal complaint against Kreil and against another person for publishing the data, the Society for Freedom Rights is seeking a landmark decision that the state cannot assert exclusive rights to data sets.
Public money, public data
The State Office for Digitization, Broadband and Surveying is responsible for recording the official house coordinates and house perimeters, i.e. the exact spatial position of all buildings in Germany, and collecting them in a database. This database is publicly funded and already made available by half of the German states as Open Data for all to use freely.
The data journalist Michael Kreil had made this dataset accessible online in its entirety, whereupon the Free State of Bavaria filed a criminal complaint against him. The reason: the data was protected by the database producer right, a special regulation in copyright law, and therefore could not be distributed.
However, the database producer right has been the subject of criticism since its introduction. No such protection right exists outside the European Union, and there is considerable legal uncertainty as to what exactly it actually protects - because pure factual information cannot be protected by copyright. In recent decisions, the European Court of Justice (ECJ) has consequently increasingly limited the scope of application of the database producer right. According to recent ECJ case law, public authorities in particular can now only invoke database producer law in exceptional cases. Last year, Germany also implemented the European Union's Open Data Directive, which also explicitly restricts the ability of public authorities to invoke the database maker right.
Censorship copyright: State must not restrict freedom of the press under pretext
The actions of the Free State of Bavaria are therefore extremely problematic. For by attempting to abuse copyright law in order to withhold pure facts from the public, it is not only freedom of information that is threatened. The state's criminal charges against a journalist for publishing information can also be seen as an attempt at intimidation and thus threatens to restrict freedom of the press. The case thus joins the tradition of so-called SLAPPs. SLAPP stands for "Strategic lawsuit against public participation". With such lawsuits or criminal charges, companies or even the state try to intimidate civil society actors and thus prevent their engagement and work.
Copyright is about protecting creators, not suppressing information
Copyright is an instrument that is supposed to enable creatives to protect their personal rights and to receive fair compensation for their work. However, when the state invokes it to withhold facts from the public that were also financed with public money, this borders on censorship. High license costs in the five- to six-figure range clearly contradict a socially desired use of this information. Such enormous costs make it almost impossible for journalists, scientists and other civil society actors to use the data that is fundamental to their work. Only making it available as Open Data ensures that everyone can benefit from this information.
With our negative declaratory action before the Munich Regional Court, we want to support the publication of the research and thus clarify that the state may not abuse copyright as a means of pressure. German authorities must also comply with the new Open Data legislation.