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Loss of intellectual property through file access?

20/2021, 12.05.2021

Cologne Higher Regional Court dismisses BfR case in the second instance

Do state research institutions have intellectual property rights to their works? Does freedom of the press allow publication without the author’s consent? Cologne Higher Regional Court addressed these questions in a legal dispute involving the German Federal Institute for Risk Assessment (BfR). In mid-2019, the BfR made a claim for injunctive relief under the Copyright Act following an unauthorised internet publication of an opinion on the plant protection product glyphosate. In the legal dispute, the court dismissed the case on 12 May 2021 (ref no.: 6 U 146/20). It determined that the BfR had initially acquired intellectual property rights to the opinion. However, the copyright had expired when it granted access to information in the document. “The legal evaluation of such processes is of great importance for scientifically active institutions”, says BfR President Professor Dr. Dr. Andreas Hensel. The ruling is not yet final.

In spring 2019, a summary of “Addendum I” to the revised Renewal Assessment Report (RAR) on glyphosate created by the BfR was published on the internet without the BfR’s consent. Both documents had been written during the scientific reassessment of glyphosate in 2015. “Addendum I” as well as all technical conclusions have been freely accessible to the public since autumn 2015:

The summary was requested under the Freedom of Information Act and made available to the applicant, although publication was not permitted. In response to numerous further requests, the BfR granted time-limited, password-protected, read-only electronic file access to the summary in May 2019 by way of a general ruling. On the basis of a similar legal dispute pending since 2015, the decision was made not to publish this document for the time being as so not to compromise the outcome of the case.

The case points out that the BfR did not withhold information, but allowed access to information. The accusation sometimes made that the BfR is abusing the Copyright Act to keep findings regarding the plant protection product active substance glyphosate secret is, therefore, refuted.

Cologne Higher Regional Court concludes that the file access granted in 2019 constitutes a publication and subsequently, the BfR has lost the further rights of use to the summary. The document has become what is referred to as an “official work”. According to the Copyright Act, this includes documents that are published in the official interest for general information purposes, meaning that they must be taken note of and observed to the fullest extent possible in accordance with the authority’s intention. In what way these requirements are met in the case of the summary is disputed in the proceedings.

The BfR’s work is characterised by its scientific, research-based approach, which pervades all fields of activity at the BfR. In the scientific community, new findings are regularly published in scientific journals. These journals have publications peer-reviewed for scientific accuracy and 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 has the right of first publication and further rights of use to its intellectual property.

The appeal to the Federal Court of Justice against the ruling has not been admitted. The BfR examines a non-admission complaint because of the fundamental significance.

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. The BfR advises the Federal Government and the 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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