The German problem with OA

From: Arthur Sale <ahjs_at_OZEMAIL.COM.AU>
Date: Sat, 14 Feb 2009 15:14:59 +1100

Klaus Graf

 

Thank you for your clear expression of what the German problem is.

 

I can fully understand the difficulty of changing a Constitution -
Australia's Constitution allows the Queen of England to disallow any
law of Australia, but Australian jurists on the High Court are
unanimous that this provision is defunct and unenforceable. However,
no one is willing to suggest deleting it from the Constitution as
this would cost millions of dollars for a referendum and might fail
even then from the opposition of diehard monarchists. Better to leave
these defunct determinations dead. BTW, the English Queen cannot
disallow English law either but they do not have a written
Constitution.

 

It seems to me that the key provisions of the German Constitution for
open access are contained in Section 5 of the Basic Law, as you
state. Please forgive me for using the official translation in
English for the benefit of readers of this list and because I am not
fully fluent in German. I also show the original and definitive
German because I can translate it in some parts better than the
`official' version.

 

Article 5 [Freedom of expression]

 

(1) Every person shall have the right freely to express and
disseminate his opinions in speech, writing, and pictures and to
inform himself without hindrance from generally accessible sources.
Freedom of the press and freedom of reporting by means of broadcasts
and films shall be guaranteed. There shall be no censorship.

 

(2) These rights shall find their limits in the provisions of general
laws, in provisions for the protection of young persons, and in the
right to personal honor.

 

(3) Art and scholarship, research, and teaching shall be free. The
freedom of teaching shall not release any person from allegiance to
the constitution.

 

Art 5

(1)       Jeder hat das Recht, seine Meinung in Wort, Schrift und
Bild frei zu äußern und zuverbreiten und sich aus allgemein
zugänglichen Quellen ungehindert zu unterrichten. DiePressefreiheit
und die Freiheit der Berichterstattung durch Rundfunk und Film
werdengewährleistet. Eine Zensur findet nicht statt.

 

(2)       Diese Rechte finden ihre Schranken in den Vorschriften der
allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der
Jugend und in dem Recht der persönlichenEhre.

 

(3)   Kunst und Wissenschaft, Forschung und Lehre sind frei. Die
Freiheit der Lehre entbindet nicht von der Treue zur Verfassung.

 

ILLEGAL?

The key provision for the claim of German prohibition of OA mandates
is clearly Section 5(3). There is no other mention of research
(forschung) in the German Constitution.  As usual what it means to
say "research ... shall be free" is ambiguous, and I can readily see
how some lawyers could advise a client that there was a possible case
that could be pursued in the Constitutional Court regarding deposit
mandates in an IR infringing on the unconstrained pursuit of
research. However unless German courts are very different from mine
in Australia (and I don't think they are since the Basic Law shares a
common heritage), the case would be very unlikely to succeed. I
therefore agree with your opinion below that there is no real barrier
to the adoption of OA mandates in Germany, other than an aversion for
and fear of expensive litigation by University Rectors or Governing
Boards.

 

I think that the German word frei means something rather close to the
English word free. Please tell me if I am wrong. I am basing this on
my knowledge of Nederlands (Dutch). If I am correct, the pivotal
meaning is that of being unconstrained. However an Open Access
deposit does not constrain the topic or conduct of research, it only
requires record-keeping after the research is completed. Exactly the
same is true of teaching (lehre) in the Basic Law. Freedom in
lecturing does not mean that the teacher cannot be required to keep
records, or to supply them to his or her employing authority. Not to
do so would infringe on other basic rights, such as 5(1).

 

OPEN ACCESS = FREE FROM COST?

The Basic Law however also allows another interpretation. Clause 5(1)
practically makes Green OA in Institutional or national Repositories
a constitutional requirement at this point in time. "Every person
shall have the right to ... inform himself without hindrance from
generally accessible sources". Restricting the "generally accessible
resources" would not get much credence from jurists. The same clause
goes on to say "Freedom of the press ... shall be guaranteed" and one
could argue what is the "press" in media-rich 2009? Can we present
repositories on Facebook? Further "There shall be no censorship" and
arguably exorbitant subscriptions are economic censorship.

 

Although clause 5(2) can be construed to support this case too ("the
right to personal honor"), clause 5(3) is even clearer "research
shall be ... free". Open Access is as close to free (in the financial
and unconstrained access sense) as we can get at present, much lower
than the cost of travelling to and visiting a public library.

 

SUMMARY

1.  Klaus, you are right that Germany has a constitutional issue with
OA, though it is probably vanishingly small. It is also unique - the
constitutional provisions are due to the special historical
conditions that they grew out of in 1949 and are unlikely to be
replicated anywhere else in the world. The world is thus safe in
classing Germany as a unique case.

 

2.  I believe we are also safe in classing the risk as minimal. I
don't think any publisher would dare mount a case in the
Constitutional Court, though they might threaten. It would cost them
far too much in bad publicity (and money) and they would be certain
to lose.

 

3.  The Constitution however can also be construed as requiring OA.
Why don't you pursue this avenue vigorously? I believe that your
consultant jurist is probably ignorant about OA, but why not ask
him/her if the Constitution requires that the outputs of German
research should also be available at lowest possible cost to any
German citizen? I'd be really interested to read the response.

 

Best wishes from

Arthur Sale

University of Tasmania

 

 

-----Original Message-----

From: American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
On Behalf Of Klaus Graf

Sent: Monday, 9 February 2009 6:27 AM

To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG

Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Repositories:
Institutional or Central ? emergent properties and the compulsory
open society

...

I do not share the opinions of the German legal experts but it is a

fact that the legal mainstream in Germany regards a mandate not

compatible with the freedom of research (art. 5 Grundgesetz) i.e.

against a fundamental right of the German constitution. It wouldn't
be

enough to change a law according these opinions - the constitution
has

to be changed (with other words: forget it).  I do not think that

there is a chance to convince the German jurists.

 

Klaus Graf

 
Received on Sat Feb 14 2009 - 11:44:07 GMT