Current litigation in Germany could well result in a seminal
ruling in relation to the openness — or otherwise — of energy
data. Indeed, this legal judgement may have implications for
Europe as a whole. Two recent articles on the German Society for
Civil Rights (GFF) v Bavaria case:
GFF (9 December 2022). GFF klagt mit Datenjournalist gegen den Freistaat Bayern: Urheberrecht darf nicht missbraucht werden, um Pressefreiheit einzuschränken [GFF files suit with data journalist against the State of Bavaria: copyright must not be abused to restrict freedom of the press] (in German). GFF – Gesellschaft für Freiheitsrechte e.V.
Grüner, Sebastian (9 December 2022). Open Data: GFF klagt gegen Bayern für freie Geodaten [Open Data: GFF sues Bavaria for free geodata] (in German). Golem.de. Berlin, Germany.
Unofficial translation of GFF statement cited above (with bolding
Together with journalist Michael Kreil, the Gesellschaft für Freiheitsrechte e.V. (GFF) is today taking legal action against the 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 a research in the daily newspaper taz on the remaining area for the construction of wind turbines under the respective distance rules of the states on the basis of this data. The data used was not only collected from public funds: several federal states also already make them openly available for reuse for their respective areas.
With the lawsuit, GFF wants to have it clarified by the courts that the publication of the research is lawful and that authorities may not prohibit the use of public sector data sets by invoking copyright law. Such a ruling would strengthen freedom of the press and information in the long term. "Through its repressive actions, the State of Bavaria is putting pressure on a journalist and thus endangering the fundamental right to freedom of the press. The state should support the use of official data in the public interest instead of suppressing it by abusing copyright," says Felix Reda [see elsewhere for Reda's GFF credentials].
The Bavarian government bases its accusation on the so-called [96/9/EC] 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 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.
[Translated with www.DeepL.com/Translator (free version)]
Note that the prior case against Michael Kreil is criminal. Germany (unlike the US, for instance) provides for criminal sanctions in its copyright legislation and custodial sentences are possible. (So beware all you energy modelers out there who equate data access with permission!)
There was an earlier and similar dispute around the ZSHH building
stock databank but the data activists appear to have shifted focus
to wind power data instead. I presume the exact same arguments
apply to both.
Thanks to Mirko for the heads up. I fully support the comments
made by Michael Kreil. With regard to criticisms of the 96/9/EC
database right, Lion and I made this submission to the European
Commission some five years back:
Morrison, Robbie and Lion Hirth (19 February 2018). Follow-up to the public consultation on the re-use of public sector information: issues surrounding sui generis database rights — Release 03. Berlin, Germany.
The essential problem with open data in Europe (and other
jurisdictions too) is that there is no robust legislative support
for information of public interest. The intellectual property law
covering data is aimed at enshrining private property rights. And
the European digital single market project seeks to strengthen and
extend those rights and then maximize the benefit to society
through trading — here I am simply repeating the official
rationale which, incidentally, reads like a defense for
proprietary software crafted prior to the current revolution in
peer production as enabled by open source licensing. When those
automatic property rights (copyright in collections and 96/9/EC
database protection, primarily) become unclear or uncertain at the
necessarily fuzzy legal boundaries, then the presumption for
risk‑averse users must be that those rights necessary apply. So I
see this GFF case as representing an attempt to push back those
boundaries though case law in relation to information of public
interest. Dedicated legislation would be the far better route but
then Brussels would need to soften its neoliberal stance on
digital markets in the process — indeed their key pillar of
"access" does not equate to "open", despite those two concepts
often being smeared into one by the news media. The fallback is to
push for Creative Commons CC‑BY‑4.0 licensing on energy datasets
and databanks from official and scientific sources.
with best wishes, Robbie
-- Robbie Morrison Address: Schillerstrasse 85, 10627 Berlin, Germany Phone: +49.30.612-87617