There is a push within the European Union under the rubric of a digital single market to commodify data including data of public interest. This civil litigation case, Gesellschaft für Freiheitsrechte e.V. v Free State of Bavaria, currently before a court in Munich, highlights that dynamic. This particular case is in reaction to early civil and criminal action by the State of Bavaria, noting that willful copyright infringement can constitute a crime under German law.
The case centers on a database recording the remaining area available for the construction of wind turbines in Germany based on mandatory separation rules. An earlier incarnation of this dispute covered the ZSHH database of buildings by type and energetic performance.
The Gesellschaft für Freiheitsrechte (GFF or approximately the “German Society for Civil Liberties”) reports (the translation provided here is unofficial):
- GFF (9 December 2022). GFF klagt mit Datenjournalist gegen den Freistaat Bayern: Urheberrecht darf nicht missbraucht werden, um Pressefreiheit einzuschränken [GFF files suit with data journalist against the Free State of Bavaria: copyright must not be abused to restrict freedom of the press] (in German). GFF – Gesellschaft für Freiheitsrechte e.V.
Together with journalist Michael Kreil, the Gesellschaft für Freiheitsrechte e.V. (GFF) is today taking legal action against the Free State of Bavaria. The aim is to obtain a court ruling that Kreil is allowed to use data from an official database containing geographical information for a journalistic publication. The Bavarian State Office for Digitalization, Broadband and Surveying (LDBV) had filed a criminal complaint against the journalist. The accusation: Kreil had made a database with allegedly copyrighted geographic data available online for download. Today, Kreil published his research in the daily newspaper taz on the remaining area for the construction of wind turbines under the respective distance rules of the various federal states on the basis of this data. The data used was not only collected using public funds: several federal states also already make them openly available for reuse for their respective areas.
“The Bavarian government bases its accusation on the so-called database right, which goes beyond regular copyright protection. This property right has been criticized since its introduction because it protects databases regardless of the respective creative achievement in the arrangement of the data sets.”
“We have only seven years left to limit global warming to 1.5 degrees. Restrictive rules on wind power development will not achieve that. Instead of addressing this problem, the state government is suppressing information that could fuel an overdue social debate. If the Free State of Bavaria had its way, I wouldn’t be allowed to publish my research,” says data journalist Michael Kreil.
Kreil’s research and the geographic data on which it is based are highly relevant to society: they show that in Bavaria, the expansion of renewable energies is particularly restricted. The use and dissemination of this data is covered by freedom of the press and freedom of information — it must not be restricted under the pretext of copyright.
The 2022 annual report (GFF 2023) published in April 2023 explains the case this way (unofficial translation):
We are taking legal action with journalist Michael Kreil against the Free State of Bavaria. Kreil had used geographical data on the spatial positions of buildings in Germany for his research on obstacles to wind turbine expansion. In doing so, he had published a data set from the publicly funded house coordinates database. Because of the publication of the data, the Free State filed a criminal complaint against Kreil. The reason: the data was protected by copyright through the so-called database producer right [provided for in directive 96/9/EC], which Kreil had violated. This repressive action endangers the fundamental right to freedom of the press. We are therefore taking legal action together with Kreil before the Munich Regional Court to have it established that he was allowed to use the data for his research.
The statement of claim has been made public:
- Feldmann, Thorsten (9 December 2022). Klageschrift Landgericht München — Unser Zeichen 22‑0786 [Statement of claim presented to Munich Regional Court — Our reference 22‑0786] (in German). Berlin, Germany: JBB Rechtsanwälte. The translated title is unofficial.
Further reporting (in chronological order):
Stenner, Pia (21 May 2021). Offene Geodaten: Bayern geht gegen Open-Data-Aktivist:innen vor [Open geodata: Bavaria takes action against open data activists] (in German). netzpolitik.org. Berlin, Germany.
Grüner, Sebastian (9 December 2022). Open Data: GFF klagt gegen Bayern für freie Geodaten [Open Data: GFF sues Bavaria for free geodata] (in German). Golem.de. Berlin, Germany.
Oswald, Bernd (15 December 2022). Journalist verklagt Bayern auf Freigabe von Geodaten [Journalist sues Bavaria for release of geodata] (in German). BR24. Munich, Germany.
GFF (April 2023). Jahresbericht 2022 [Annual report 2022] (in German). Berlin, Germany: Gesellschaft für Freiheitsrechte. Short summary on page 9.
- taz : a German newspaper, see wikipedia
- GFF : Gesellschaft für Freiheitsrechte e.V., a non‑profit based in Berlin, see wikipedia
- LDBV : Bayrische Landesamt für Digitalisierung, Breitband und Vermessung
- ZSHH : Zentrale Stelle Hauskoordinaten, Hausumringe und 3D-Gebäudemodelle (databank)
- Bavaria had also earlier litigated about reuse of its published maps under case ECLI:EU:C:2015:735. More here: Schweizer, Mark (5 November 2015). C-490/14 — Verlag Esterbauer: Get off my map!. The IPKat. London, United Kingdom. Legal blog.
- an earlier version indicated that the court was located in Berlin
- newer versions include the statement of claim and material from the 2022 annual report
- added remark on case ECLI:EU:C:2015:735