Official Work and the Freedom of Information Act

May an official work be redistributed if it was accessible following a request under the Freedom of Information Act? The Regional Court (LG) Cologne addressed this question.

The Federal Institute for Risk Assessment (BfR) and the internet portal FragDenStaat disputed copyright infringement claims asserted by the BfR. The dispute concerned an expert opinion by the BfR on the controversial question of the hazards of the pesticide glyphosate.

Following a request for the expert opinion on the basis of the Informationsfreiheitsgesetz (IFG), this was also made available to FragDenStaat. Specifically, the BfR issued a general administrative decision by virtue of which persons who submitted a request for information access to the expert opinion were granted read access.

However, the expert opinion also contained a notice that the transmission was for personal use only. It was pointed out that further publication of the expert opinion would require prior written consent.

The portal FragDenStaat, however, published the expert opinion without obtaining the aforementioned consent. This was followed by a cease-and-desist procedure by the BfR, which sought to prohibit publication of the expert opinion. The dispute over the permissibility of publication came to a preliminary conclusion in proceedings before the LG Cologne.

Official Work vs. Copyright

The LG Cologne (Urt. v. 12.11.2020, Az. 14 O 163/19) decided that no claim for cessation of publication of the expert opinion exists. FragDenStaat was entitled, in the court's view, to publish it.

First, the court established that the expert opinion generally enjoyed copyright protection as a literary work. The level of originality required for protection under copyright law had been met. Furthermore, the court determined a violation of the exclusive exploitation rights held by the BfR as the owner of the exclusive rights of use by means of the publication.

The court concluded, however, that the online portal did not act unlawfully in making the publication. On the one hand, the copyright limitation of the right of quotation applied in favour of the portal. The court established that the expert opinion had already been "published" within the meaning of the German Copyright Act (Urheberrechtsgesetz) upon the grant of the request under the Freedom of Information Act.

Furthermore, at the latest upon publication of the general administrative decision, the expert opinion was to be classified as an official work within the meaning of the German Copyright Act. Since, under the German Copyright Act, an official work does not enjoy copyright protection if it has been published in the official interest for general knowledge, unlawfulness was excluded also from this perspective.

Conclusion

In the view of the LG Cologne, an official work may be redistributed if it was accessible following a request under the Freedom of Information Act.