Commodification of public interest information

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.

Review

The Gesellschaft für Freiheitsrechte (GFF or approximately the “German Society for Civil Liberties”) reports (the translation provided here is unofficial):

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.

Moreover:

“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.

Statement of claim

The statement of claim has been made public:

Ancilliary material

Further reporting (in chronological order):

Some abbreviations:

  • 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)

Related postings:

Comment:

Edits:

  • 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

Update and good news

The Gesellschaft für Freiheitsrechte (GFF) informs me by email on 25 April 2025:

The proceedings have been concluded. A hearing took place during which the court made it clear that it agreed with our legal position. As a result, the Free State of Bavaria provided our client with the requested data free of charge and also offered a cost-free license. In turn, we had to withdraw our claim.

This represents a significant success, as the Free State of Bavaria, as a public authority, is now required to treat all future applicants in similar cases equally. Consequently, the state must also make the data available free of charge to other requesters. We have already tested this with another journalist, who successfully received the data as well.

The license mentioned is bilateral and the data received does not class as open data under The Open Definition. But this is still a step forward.

Postscript: Some mentioned to me that this litigation was carried out under article 7 of the database directive which covers sui‑generis rights designed to protect investment in database infrastructure and not under article 3 which covers copyright for collections of data.