German Federal Constitutional Court decision on secondary publication obligation

On 24 March 2026, the German Federal Constitutional Court ruled against the state of Baden-Württemberg and the University of Konstanz, rejecting their attempt to establish a secondary publication obligation through state and institutional statutes under Section 38(4) of the German Copyright Act (UrhG). The Court found the obligation void on competence grounds: copyright legislation is a matter of federal, not state, jurisdiction in Germany. The decision also has implications for EU-level policy, supporting the view that any secondary publication requirements introduced at European level would properly belong within the copyright framework.

Beyond the competence question, the Court made observations worth noting. By grounding the obligation in classic copyright doctrine, it reaffirmed the established principle that limitations on exclusive rights require justification and careful balancing between authors’ moral and economic interests and public-interest objectives. The Court also recognised that removing authors’ freedom to decide how their rights are exercised carries normative weight in that balance.