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What about the intellectual property of government research institutions?

38/2020, 12.11.2020

Cologne Regional Court dismisses the action brought by the German Federal Institute for Risk Assessment in the first instance

Are government research institutions entitled to intellectual property rights to their work? Does freedom of the press allow publication without the consent of the author? The Cologne Regional Court dealt with these and other questions in a legal dispute brought by the German Federal Institute for Risk Assessment (BfR). The BfR had filed a claim for injunctive relief under copyright law due to non-consensual internet publication of an opinion on glyphosate. In the legal dispute, the Cologne Regional Court dismissed the case on November 12, 2020 (Case no.: 14 O 163/19). It found that the BfR had initially acquired intellectual property to the scientific work. However, due to the particularities of the individual case, the court ruled that the BfR was not entitled to an injunction. The ruling is not legally binding. "From the BfR’s point of view, essential questions of copyright have not been clarified", said BfR President Professor Dr. Dr. Andreas Hensel.

A summary of the "Addendum I" to the revised Renewal Assessment Report (RAR) on glyphosate, also prepared by the BfR in 2015, was published on the internet without the consent of the BfR. Both documents were written as part of a scientific reassessment of glyphosate. The accusation that the BfR is misusing copyright law to keep knowledge about the active ingredient glyphosate secret is absurd. The Addendum I and all technical conclusions have been freely accessible to the public since autumn 2015:

The plaintiff received the summary under the Freedom of Information Act, without being permitted a publication. In response to numerous other enquiries, the BfR issued a general order in May 2019 to grant electronic access to the summary in the form of a time-limited, password-protected read-only access. Due to a similar legal dispute that has been pending since 2015, it was decided not to publish this document for the time being in order not to jeopardise the outcome of the proceedings.

The Cologne Regional Court nonetheless came to the opinion that this procedure constituted a publication, as a result of which use as a quotation was permissible and that the BfR had not only lost its right to first publication, but also its further rights of use to the summary. The court concluded that the document had been given the characteristics of an "official work". According to the German Copyright Act, this includes documents that are published in the official interest for the purpose of general information. Typically, they contain information that the authorities want to take note of and to be observed as comprehensively as possible. However, the court did not explain why the summary fulfilled these requirements.

The BfR's work is characterised by its scientific, research-based approach, which pervades all fields of activity at the BfR. In science, new findings are regularly published in specialist journals. These journals ensure the publications are checked for scientific correctness by experts and also do not accept them if the results have already been published elsewhere. Against this background, it is of fundamental significance for the BfR to establish who is entitled to the right of first publication and to the right of further use to its intellectual property.

The BfR considers to appeal to the Cologne Higher Regional Court.

About the BfR

The German Federal Institute for Risk Assessment (BfR) is a scientifically independent institution within the portfolio of the Federal Ministry of Food and Agriculture (BMEL) in Germany. It advises the German federal government and German federal states ("Laender") on questions of food, chemical and product safety. The BfR conducts its own research on topics that are closely linked to its assessment tasks.

This text version is a translation of the original German text which is the only legally binding version.




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