Paragraph 52a Controversial and Hard-Fought

Controversial and Hard-Fought; © Colourbox
Controversial and Hard-Fought | Photo (detail): © Colourbox

Paragraph 52a of the German Copyright Law provides an essential legal basis for e-learning at universities and for work in research networks. Shortly before its expiry, the clause was once again merely extended – but not made permanent – at the end of 2012.

It appears somewhat paradoxical: state funding organizations are attaching ever greater importance to research networks whose work transcends the boundaries between disciplines and institutions, and indeed between federal states. At the same time, Germany’s Federal Ministry of Education and Research (BMBF) has been taking targeted steps to expand the range of e-learning opportunities at universities for years. Yet a legal framework to allow research in networks is by no means guaranteed, and nor is contemporary media support in academic teaching.

Exemption in copyright law

Since 2003, the German Copyright Law (UrhG) has contained a paragraph of great significance for education, science and research in today’s information society. In principle, anyone wishing to use works protected by copyright requires the consent of the rights holder. Paragraph 52a provides for an exemption to this. Known in Germany as the “science paragraph”, it allows teachers and researchers to make parts of copyrighted works available to others for the purposes of teaching and research.

“Without this paragraph, every teacher and every researcher would have to obtain consent for every usage – in other words, they would have to enter into a licensing agreement with the publisher in question”, explains Rainer Kuhlen, spokesperson of the Coalition for Action “Copyright for Education and Research”. Paragraph 52a thus provides a legal basis for ensuring that electronic collections of material – without which the everyday work of teachers and researchers nowadays is almost unthinkable – can be compiled in a relatively uncomplicated fashion.

Nonetheless, Paragraph 52a found itself on the brink for the third time at the end of 2012 because it has always been valid only for temporary periods. “Once again, the clause was extended only just in time and by the skin of its teeth”, says Kuhlen, an information science expert. Although the opposition parties had spoken out in favour of giving the paragraph permanent status, the governing coalition only managed to agree on extending it until the end of 2014.

“Long-term legal certainty”

The exemption for science and research contained in the copyright law is highly controversial. It applies in equal measure to commercial providers and academic representatives, though for different reasons. Whereas the German Publishers and Booksellers Association has for years been calling for the paragraph to be abolished, it does not go far enough in the view of the German Library Association (dbv), the Coalition for Action “Copyright” and the Alliance of Science Organizations.

Representatives of universities and research institutions and their libraries tend to regard the paragraph as something of a stopgap. “We demand long-term legal certainty for science and research”, declares Oliver Hinte, chairman of the dbv’s legal commission. One subject of criticism is the paragraph’s wording: it talks of “small parts of a work” and of limiting usage to “the classroom”. Such imprecise formulations have also led to a whole series of lawsuits in recent years.

Universal exemption for academia?

“The ongoing lawsuits were one argument for the governing parties not to give the paragraph permanent status. They plan first to wait for the final court rulings”, says Oliver Hinte. Furthermore, the coalition pointed out that the effects of the paragraph have still not been conclusively evaluated even nine years on.

One point of contention that remains unresolved is the question of compensation. While general agreements on the use of copyrighted works at schools have been concluded between all eight collecting societies concerned and the federal states, agreement on usage at universities has yet to be reached between the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany (KMK) and the collecting society VG Wort. This landmark case has meanwhile made it all the way to Germany’s Federal Court of Justice.

At least the bill to extend Paragraph 52a states that the German government should check, before the current period of validity expires, “whether this regulation could be converted into a new blanket exemption for academia”. Science organizations have long been calling for such a general rule. “And in doing so we are by no means alone”, says Rainer Kuhlen. “The Study Commission on the Internet and Digital Society has also urged the government to take legislative action in this area. One concrete proposal, for example, is the European Copyright Code. The Federal Ministry of Justice must finally act if it does not wish to lose the confidence and trust of education and academia entirely.”