R e a s o n s :

A. 

1

The subject matter of these specific judicial review proceedings is the so-called secondary publication obligation imposed by § 44(6) of the Act on Higher Education Institutions in Baden-Württemberg (Gesetz über die Hochschulen in Baden-Württemberg, Landeshochschulgesetz, Baden Württemberg Higher Education Act – LHG) on academic staff at higher education institutions in Baden-Württemberg. The referring court believes the provision to be incompatible with the Basic Law’s allocation of legislative competence between the Federation and the Länder.

I. 

2

1. Art. 1 no. 2 letter c of the Act on the Use of Orphan and Out-of-Print Works and a Further Change of the Copyright Act (Gesetz zur Nutzung verwaister und vergriffener Werke und einer weiteren Änderung des Urheberrechtsgesetzes) of 1 October 2013 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 3728) introduced a fourth paragraph into § 38 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte, Urheberrechtsgesetz, Copyright Act - UrhG) effective 1 January 2014. This paragraph governs a so-called right to secondary publication for authors of certain academic papers. It states as follows:

The author of an academic paper which results from research activities that are at least 50 % publicly funded and published in a collection appearing at least twice a year retains the right to make the academic paper available to the public twelve months after first publication in the accepted manuscript version even if they have granted the publisher or editor an exclusive right of use, unless this serves a commercial purpose. The source of the first publication must be cited. Any agreement which deviates from this provision to the detriment of the author is ineffective.

3

2. On 27 March 2014, the Land parliament of Baden-Württemberg passed the Third Act Amending Higher Education Law (Drittes Hochschulrechtsänderungsgestz – 3. HRÄG). It was certified on 1 April 2014 and, to the extent relevant here, entered into effect on the day following its promulgation on 8 April 2014 (cf. Baden-Württemberg Law Gazette, Gesetzblatt für Baden-Württemberg – Gbl BW p. 99). Art. 1 of this Act revised the Baden-Württemberg Higher Education Act and adopted the so-called secondary publication obligation in its § 44(6). It states as follows:

Higher Education Institutions shall introduce bylaws obligating their academic staff to make use of their right to non-commercial secondary publication after twelve months from the date of first publication for those academic papers that have been written in fulfilment of their employment obligations and which have been published in a collection appearing at least twice a year. The bylaws shall govern cases in which the obligation under the first sentence may be waived in exceptional cases. They may introduce an obligation to make the secondary publication available in a repository according to § 28(3) of the Baden-Württemberg Higher Education Act.

4

The provision under § 28(3) of the Baden-Württemberg Higher Education Act referred to in § 44(6) third sentence of the same states as follows:

To facilitate secondary publications by academic staff in accordance with § 44(6), higher education institutions shall offer repositories, participate in such repositories or ensure access to suitable repositories offered by third parties.

5

Art. 1 no. 41 and no. 52 of the Fourth Act Amending Higher Education Law (Viertes Hochschulrechtsänderungsgesetz – 4. HRÄG) of 17 December 2020 (Gbl BW p. 1204) moved the then-paragraph (3) of § 28 of the Baden-Württemberg Higher Education Act to paragraph (5); the reference to that section in § 44(6) was amended accordingly. Apart from those changes, the Act has remained unchanged to the present.

6

3. The draft law and legislative materials of the Third Act Amending Higher Education Law of the Land government (Baden-Württemberg Land parliament document, Landtagsdrucksache Baden-Württemberg – LTDrucks BW 15/4684, pp. 215 f.) provided the following reasons regarding § 44(6) of the Baden-Württemberg Higher Education Act, which inter alia addressed the question of legislative competence of the Land:

This provision builds on the new rule regarding the right to secondary publication under § 38(4) of the Copyright Act in the version in force from 1 January 2014. On the basis of this right to secondary publication, § 44(6) authorises higher education institutions to obligate academic staff who hold a right to secondary publication to make use of that right under certain conditions. In order for this obligation to exist, the publication must be written as part of the fulfilment of the employment obligations, as this fulfils the prerequisite of the research being ‘at least 50 % publicly funded’, and the date of first publication must have been at least one year prior; further, the paper must have been published first in a collection appearing at least twice a year and the secondary publication may not serve commercial purposes. Higher education institutions must obligate their academic staff to make use of this right if these requirements are met. This rule applies to authors as public employees of the Land, which is the source of the funding that made the research and the publications possible. Among other things, this justifies the obligation to make use of the right to secondary publication. Furthermore, the secondary publication of publicly funded papers makes it easier for researchers and others interested in scientific progress to access academic information. In this way, the state is able to fulfil its educational and cultural mandate and its objective legal duty under Art. 5(3) of the Basic Law to provide a functioning and efficient science system; this duty also includes an appropriate distribution of the findings. These obligations apply to those public employees of the funding Land that have been entrusted with research. They function as a constitutional limitation inherent in the Basic Law on the freedom of academic staff to decide on the publication of their findings themselves – at least in cases in which they have already acted on this freedom by publishing their findings in the first place. In terms of legislative competences, the provision constitutes a provision of public employment and higher education law.

7

4. Based on § 44(6) of the Baden-Württemberg Higher Education Act, the University of Konstanz, the respondent in the initial proceedings, enacted its ‘Bylaws on Exercising the Right to Secondary Publication of Academic Papers conferred by § 38(4) of the Copyright Act’ of 10 December 2015 ([...]).

8

The bylaws in relevant part state as follows:

[...]

§ 2 Secondary Publication

(1) Authors of academic papers which result from research activities that are at least 50 % publicly funded and have been published in a collection appearing at least twice a year after 1 January 2014 retain the right to make the academic paper available to the public twelve months after first publication in the accepted manuscript version even if they have granted the publisher or editor an exclusive right of use, unless this serves a commercial purpose.

(2) If the prerequisites of paragraph (1) are fulfilled and the academic papers have been written as part of the fulfilment of employment obligations, they must be made available to the public twelve months after first publication in the repository of the university.

9

[...]

II. 

10

1. The applicants in the initial proceedings are or were full professors at the University of Konstanz. They challenged the bylaws before the Higher Administrative Court of Baden-Württemberg with an application for judicial review according to § 47(1) no. 2 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) in conjunction with § 4 of the Baden-Württemberg Act on the Execution of the Code of Administrative Court Procedure (Gesetz zur Ausführung der Verwaltungsgerichtsordnung Baden-Württemberg – AGVwGO BW). Their primary contention: The bylaws lack a legal basis because § 44(6) of the Baden-Württemberg Higher Education Act violates superior law. [...]

11

2. By order of 26 September 2017 - 9 S 2056/16 - the Higher Administrative Court suspended the proceedings and referred the question whether § 44(6) of the Baden-Württemberg Higher Education Act in the version of the Third Act Amending Higher Education Law violated Art. 71 and Art. 73(1) no. 9 of the Basic Law to the Federal Constitutional Court.

12-13

[...]

14

b) The Higher Administrative Court concludes that § 44(6) of the Baden-Württemberg Higher Education Act is incompatible with Art. 73(1) no. 9 in conjunction with Art. 71 of the Basic Law and void.

15-17

[...]

III. 

18

The German Bundestag, the Bundesrat, the Federal Government, the Land parliament and the Land government of Baden-Württemberg, as well as all other Land governments and the parties of the initial proceedings were given the opportunity to submit statements.

19-20

[...]

B. 

21

The decision is given without an oral hearing, as the Land government party to the proceedings waived its right to an oral hearing by written submission of 24 November 2025 (§ 25 Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht, Bundesverfassungsgerichtsgesetz – BVerfGG)).

22

The referral is admissible (Art. 100(1) of the Basic Law, § 13 no. 11, §§ 80 ff. Federal Constitutional Court Act). In particular, the Higher Administrative Court has shown, in a manner fulfilling the requirements of § 80(1) first sentence of the Federal Constitutional Court Act, that the question of the constitutionality of § 44(6) of the Baden-Württemberg Higher Education Act is decisive for the initial proceedings pending before it.

I. 

23-24

[...]

II. 

25

Any doubts as to the compatibility of § 44(6) of the Baden-Württemberg Higher Education Act with European Union Law do not affect the relevance of the provision in question for the decision in the case pending before the referring court.

26

When disputes exist as to the legal situation under European Union law and under constitutional law, there is no established hierarchy between making an application for a preliminary ruling to the Court of Justice of the European Union (Art. 267 of the Treaty on the Functioning of the European Union) and referring the case to the Federal Constitutional Court (Art. 100(1) of the Basic Law); rather, it is for the referring court to decide how to proceed (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 116, 202 <214 f.>; 129, 186 <203>; 160, 1 <16 para. 45>). Conversely, if it has been established that the challenged law violates EU law and that it may not be applied due to the precedence of application, then the law in question is not relevant for the decision within the meaning of Art. 100(1) first sentence of the Basic Law (cf. BVerfGE 106, 275 <295>; 116, 202 <214>; 160, 1 <17 para. 45>). In this case, too, the legal view of the referring court prevails unless it is manifestly untenable (cf. BVerfGE 160, 1 <17 para. 45>).

27

With references to the relevant statements made during the legislative process and in legal scholarship, the Higher Administrative Court has comprehensibly shown that a violation of Copyright Directive 2001/29/EC by § 44(6) of the Baden-Württemberg Higher Education Act cannot be ruled out. However, the Higher Administrative Court found that the Court of Justice of the European Union has not yet rendered a decision that would provide a sufficiently clear indication of such a violation. This assessment is neither obviously untenable, nor has it been rendered obsolete by a subsequent decision of the Court of Justice.

C. 

28

§ 44(6) of the Baden-Württemberg Higher Education Act is incompatible with Art. 71 and Art. 73(1) no. 9 of the Basic Law and void.

29

Given the constitutional standards which apply to the separation of legislative competences between the Federation and the Länder (see I. below) and to the classification of a legal provision to a specific legislative competence (see II. below), § 44(6) of the Baden-Württemberg Higher Education Act, as a provision of Land law in the field of copyright, violates the provisions on legislative competence in Art. 71 and Art. 73(1) no. 9 of the Basic Law (see III. below).

I. 

30

The Federation has the right to legislate insofar as the Basic Law confers such competence to it (see 1. below). In particular, the Federation has exclusive legislative competence for the fields listed in Art. 73 of the Basic Law (see 2. below).

31

1. Pursuant to Art. 70(1) of the Basic Law, the Länder have the right to legislate insofar as the Basic Law has not allocated such competence to the Federation. Pursuant to Art. 70(2) of the Basic Law, the allocation of legislative competences to the federal government is set out above all in the provisions concerning the exclusive (Art. 73 and Art. 105(1) of the Basic Law) and the concurrent (Art. 74 and Art. 105(2) of the Basic Law) legislative competences. With the exception of Art. 109(4), the Basic Law contains a comprehensive allocation of legislative competence to either the Federation or the Länder. Shared legislative competence for the same matter is alien to these provisions concerning allocation and would be incompatible with their function as provisions of demarcation. By means of the enumerated competences in Art. 73 and Art. 74, the Basic Law provides a complete division of the legislative competences of the Federation from those of the Länder. If a law concerns various matters that belong in part to the legislative competence of the Federation and in part to the legislative competence of the Länder, it is necessary to classify the law according to one area of competence or the other. According to the constitutional system of classifying competences, the area of competence of the Länder is generally determined by the scope of the area of competence of the Federation, not vice versa (cf. BVerfGE 157, 223 <253 f. paras. 80 ff.>; 160, 1 <18 paras. 50 ff.>; 163, 1 <13 f. para. 22> – Wind turbines in woodland areas; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 26 – Berlin Higher Education Act; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 85 – Triage situations II).

32

2. Pursuant to Art. 71 of the Basic Law, the Federation in principle has the sole legislative power on matters of exclusive legislative competence unless it has expressly authorised the Länder to enact their own legislation. The matters in which the Federation has exclusive legislative competence follow from several different provisions within the Basic Law, but in particular from the catalogue of competences in Art. 73(1) of the Basic Law. The matters enumerated in Art. 73 of the Basic Law must be regulated by the Federation. In contrast  to matters of concurrent legislative competence (cf. Art. 72(1) of the Basic Law), the Constitution generally bars the Länder from legislating in the matters within the exclusive competence of the Federation. According to Art. 71 of the Basic Law, there are exceptions from this preclusive effect only if and to the extent that an express authorisation to legislate by the Federation to the Länder has been granted in a (formal) federal law (cf. BVerfGE 160, 1 <19 f. paras. 55 ff.>).

II. 

33

A determination whether a legal provision falls within a matter enumerated in Art. 73 of the Basic Law requires interpretation of the legislative competence in question as a first step (see 1. below) and, as a second step, follows from the direct subject matter of the legislation, statutory purpose, effects and the entities to which it is addressed (see 2. below).

34

1. The first step required in interpreting the competence clauses in the Basic Law follows the general rules of constitutional interpretation, according to which interpretation is based primarily on the wording, systematic structure, spirit and purpose and legislative history of the constitutional provision in question (cf. BVerfGE 157, 223 <260 para. 100>; 160, 1 <21 para. 61>; 163, 1 <14 para. 24>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 27; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 86). In this regard, state practice and the development of the relevant subject matter of the competence have particular significance (cf. BVerfGE 157, 223 <260 para. 100>; 160, 1 <21 para. 61>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 27; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 86). Whether and how the historical legislator applied a specific legislative competence and how this has led to a certain understanding of the provision over time can be derived from state practice (cf. BVerfGE 77, 308 <331>; 157, 223 <260 para. 100>; 160, 1 <21 para. 61>). The legislative history is less relevant when the subject matter of the competence concerns factual circumstances, but has greater weight when the subject matter of the competence clause normatively addresses an existing area of law. In the latter case, the traditional and conventional understanding of that area of law takes on greater significance (cf. BVerfGE 138, 261 <273 f. para. 29>; 145, 20 <59 para. 99>; 157, 223 <264 f. para. 110>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 27; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 86). If the constitutional legislator has found a normatively defined subject matter and has classified it as such in a comprehensible manner, it must be assumed that the way in which it is designed under ordinary law generally also defines the scope of the competence clause (cf. BVerfGE 109, 190 <218>; 138, 261 <274 para. 29>; 163, 1 <17 para. 31>). This presupposes the existence of a body of law that is largely complete in terms of its development or regulatory framework, as is the case with criminal law. If this is the case, the normative structures of the subject matter in the way in which they have developed in the particular area of law can be referred to for interpretation (cf. BVerfGE 145, 20 <62 para. 105>; 163, 1 <18 para. 31>).

35

2. The second step in classifying a legal provision according to a constitutionally assigned area of competence as determined through the aforementioned interpretation is carried out by examining the direct subject matter of the legislation, statutory purpose, effects and the entities to which it is addressed. First and foremost, the relevant area of competence is determined by the objective subject matter of the law to be examined. In this respect, it is the substantive content of a provision rather than the designation chosen by the legislator that is determinative. The effects of a law are determined based on its legal consequences. The statutory purpose is to be determined by recognised methods of legal interpretation, i.e. based on the wording, systematic structure, contextual meaning, as well as the legislative materials and legislative history. This will depend upon the objective intent of the legislator as expressed in the law, which must be determined using the recognised methods of statutory interpretation. By contrast, subjective assumptions held by organs involved in the legislative process or by any individual members of these organs are not a determining factor (cf. BVerfGE 161, 63 <92 f. paras. 56 f.> – Wind farm participatory companies; 163, 1 <14 f. para. 25>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 28; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 87).

36

In this examination, individual provisions that are part of a larger regulatory framework may not be taken out of context and assessed in isolation. Individual provisions within the law that are so closely ‘interconnected’ with the overall focus of the law that they appear to be a part of the same framework belong to the same area of competence as the law generally. A close interconnection and a limited independent regulatory content of individual provisions generally argue in favour of assigning such provision to the area of competence of the law as a whole. In contrast, individual provisions that have their own regulatory content and which are not closely interconnected with the law as a whole must be classified independently in terms of the applicable legislative competence (cf. BVerfGE 97, 228 <251 f.>; 137, 108 <161 para. 123>; 161, 63 <93 para. 58>; 163, 1 <15 para. 26>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 28; Order of the First Senate of 23 September 2025 - 1 BvR 2284/23 inter alia -, para. 87).

III. 

37

According to these standards, the Land Baden-Württemberg lacks the necessary legislative competence to enact § 44(6) of the Baden-Württemberg Higher Education Act because it is legislation in the area of copyright and thus falls within the exclusive legislative competence of the Federation pursuant to Art. 73(1) no. 9 of the Basic Law. There being no express authorisation in a federal law for the Land to legislate according to Art. 71 of the Basic Law, § 44(6) of the Baden-Württemberg Higher Education Act is incompatible with Art. 73(1) no. 9 of the Basic Law.

38

Given the general regulatory content of the competence clause in Art. 73(1) no. 9 of the Basic Law (see 1. below), the provision in question is to be classified as copyright (see 2. below).

39

1. The exclusive legislative competence of the Federation for industrial property rights, copyrights and publishing relates to legal matters for the protection of intellectual property. According to its wording and legislative history (see a) below) and the developments in ordinary law in the areas ‘copyright’ and ‘publishing’, which are affected in the case at hand (see b) below), Art. 73(1) no. 9 of the Basic Law normatively addresses an existing area of law (see c) below) and derives its regulatory content from this area (see d) below).

40

a) The competence clause in Art. 73(1) no. 9 of the Basic Law has historical precursors in the Frankfurt Constitution (Paulskirchenverfassung) of 28 March 1849. In its § 40, the Frankfurt Constitution prescribed that ‘patents for inventions [...] [were to be] granted only ex officio on the basis of a Reich law’ and that ‘the exclusive legislative competence to regulate the reproduction of books, all illegal copying of works of art, trademarks, sample specimens and casting moulds and against all other limitations of intellectual property [was to be] that of the Reich’; the right to property in § 164 of the Frankfurt Constitution, according to its paragraph (3), included the duty ‘to protect intellectual property [...] through legislation of the Reich’. Art. 4 no. 5 and 6 of the Constitution of the German Reich of 16 April 1871 afforded the Reich the legislative competence for ‘patents for inventions’ and the ‘protection of intellectual property’. While the Weimar Constitution (Weimarer Reichtsverfassung) of 11 August 1919 did not include a comparable competence clause for the Reich legislator, with Art. 158(1) instead being limited to imposing a duty to protect in the area of intellectual property (‘intellectual work and the rights of creators, inventors and artists are protected by the Reich’), the Parliamentary Council (Parlamentarischer Rat), by establishing the Federations exclusive federal competence (ultimately) enshrined in Art. 73 no.9 [of the 1949 Basic Law], built on the legislative traditions of the earlier competence clauses granting competence to legislate in matters of intellectual property law to the Reich; this was done in order to close the regulatory gap identified in the Weimar Constitution (cf. statements made by Dres. Strauß and Hoch, Stenographic protocol of the second meeting of the committee for the regulation and demarcation of legislative competences of 22 September 1948, in: Deutscher Bundestag und Bundesarchiv <eds.>, Der Parlamentarische Rat 1948–1949, Akten und Protokolle, vol. 3, 1986, pp. 11, 16). By designating the subject matter of the legislative competence of the Federation as the triad of ‘industrial property rights, copyright and publishing’, the constitutional legislator adopted the wording of Art. 36 no. 5 of the draft constitution of Herrenchiemsee, which had envisaged an exclusive legislative competence of the Federation in this regard, with the sole difference being the order in which it enumerated the subject matters. The triad was chosen with the existing Reich legislation and the prevalent views of relevant legal scholarship in mind, by means of which the laws protecting intellectual property had attained a certain differentiation through the decades (cf. Dr. Strauß, Stenographic protocol of the second meeting of the committee for the regulation and demarcation of legislative competences of 22 September 1948, in: Deutscher Bundestag und Bundesarchiv <eds.>, Der Parlamentarische Rat 1948–1949, Akten und Protokolle, vol. 3, 1986, p. 11; Stenographic protocol of the sixth meeting of the general committee of 19 November 1948, in: Deutscher Bundestag und Bundesarchiv <eds.>, Der Parlamentarische Rat 1948–1949, Akten und Protokolle, vol. 14/I, 2009, pp. 195 f.).

41

b) The legal developments in the areas described as ‘copyright’ and ‘publishing’ referred to in this context – which are of interest in the present proceedings – originate from 19th century legislation on the reproduction of literary works in various German states ([...]). The North German Confederation (Norddeutscher Bund) subsequently passed the Act concerning Copyright in Literary Works, Illustrations, Musical Compositions and Dramatic Works (Gesetz betreffend das Urheberrecht an Schriftwerken, Abbildungen, musikalischen Kompositionen und dramatischen Werken) of 11 June 1870 (Law Gazette of the North German Confederation, Bundesgesetzblatt des Norddeutschen Bundes, p. 339). This Act was adopted by the German Reich after it had been founded in 1871 and was complemented with the Act concerning Copyright in Works of the Performing Arts (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste) of 9 January 1876 (Reich Law Gazette, Reichsgesetzblatt, RGBl p. 4) and the Act concerning Copyright in Works of Photography (Gesetz betreffend den Urheberschutz an Werken der Photographie) of 10 January 1876 (RGBl p. 8) in order to protect creators of other types of works. With the development of international copyright ([...]) and the further advancement of case-law and legal scholarship, a need to reform these initial laws was identified. These laws were subsequently replaced by the Act concerning Copyright in Works of Literature and Musical Arts (Gesetz betreffend das Urheberrecht an Werken der Literatur und der Tonkunst) of 19 June 1901 (RGBl p. 227; hereinafter: Literary Works Copyright Act), the Act concerning Copyright in Works of the Performing Arts and Photography (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie, Kunsturhebergesetz, Performing Arts Copyright Act – KunstUrhG) of 9 January 1907 (RGBl p. 7) and the Act on Publishing Law (Gesetz über das Verlagsrecht, Publishing Act – VerlG) of 19 June 1901 (RGBl p. 217).

42

The Literary Works Copyright Act granted creators exclusive rights with regard to their works. These rights primarily related to reproduction and commercial distribution and – for theatrical and musical works – public performance; in addition, the right to publish was officially recognised (§§ 11, 35 Literary Works Copyright Act). In particular, the right to edit existing works extended to translations and re-translations, as well as to certain types of playbacks and the production of excerpts (§ 12 Literary Works Copyright Act). Specifically,  in provisions regarding publishing and editing, as well as in those protecting the integrity of the works (§§ 9, 24 Literary Works Copyright Act) and those on mandatory attribution in cases of legitimate use (§§ 18, 25 Literary Works Copyright Act), a dimension of personality rights protection was introduced into copyright that extended beyond the mere right to material exploitation of a creation ([...]). The exclusive rights were subject to certain limitations in the public interest (§§ 13 ff. Literary Works Copyright Act). The Performing Arts Copyright Act contained comparable provisions for the protection of performing arts works and photography; in addition, it contained provisions on the protection of one’s own image – which remain in force today (§§ 22 through 24 Performing Arts Copyright Act). The Publishing Act – which also remains in force subject to some later amendments – complemented the provisions of the Literary Works Copyright Act as an act on the copyright of creators. It contained rights and obligations that existed between a creator of a work of literature or musical art and their publisher based on a publishing contract concluded between them for the reproduction and distribution of the work. It contained, inter alia, provisions on limitations of the rights of the creator vis-à-vis the publisher (§§ 2 ff.).

43

These provisions remained largely unchanged until the time the Parliamentary Council began its deliberations. They thereby led to a structural consolidation of copyright and publishing law into a unified body of legislation, although case-law and legal scholarship continued to shape the law in response to practical needs, for example, an expansion of the scope of creators’ personality rights through case-law of the Reich Court ([…]).

44

c) As a provision which normatively assigns the areas of copyright and publishing exclusively to the Federation, Art. 73(1) no. 9 of the Basic Law builds on this existing body of legislation and its respective practical application. With this in mind, the legislative history takes on particular importance in determining the regulatory content of the competence clause. In addition to the pre-constitutional body of ordinary law, state practice under the Basic Law must also be taken into account (cf. BVerfGE 157, 223 <271 ff. paras. 124 ff.>). For copyright, this state practice is primarily characterised by the Act on Copyright and Related Rights of 9 September 1965 (BGBl I p. 1273), as amended by the Act of 23 October 2024 (BGBl I no. 323); for publishing law, it is characterised by the aforementioned Publishing Act, as amended by the Act of 22 March 2022 (BGBl I p. 1155). The traditional legal understanding expressed in the normative structures, regulatory content and terminology of these acts guides the interpretation of Art. 73(1) no. 9 of the Basic Law (cf. with regard to this subject matter already BVerfGE 58, 137 <145 f.>; 97, 228 <251>; […]). At the same time, the competence clause is open to developments, in particular with a view to technological advancements ([...]). Copyright has always been characterised by the necessity to adapt to changing economic and social conditions and, in particular, to new technological developments in the reproduction, distribution and presentation of works ([...]).

45

d) Based on this, Art. 73(1) no. 9 of the Basic Law, with its allocation of copyright, establishes an exclusive legislative competence of the Federation for the protection of intellectual property in cultural – particularly literary, musical, other artistic and scientific – works (cf. §§ 1 and 2 Copyright Act) and for related rights (cf. §§ 70 ff. Copyright Act). A broad understanding of this provision finds support in the Herrenchiemsee constitutional draft, according to which ‘copyright’ under Art. 36 no. 5 of the draft was to include ‘the entire right of intellectual creation [...], to the extent that it is not already included in industrial property rights’ in the exclusive legislative competence of the Federation ([...]). Copyright encompasses all provisions which protect the creator’s intellectual and personal relationship to the work they created and in regard to the use of such work, including a guarantee of reasonable remuneration for use of the work ([...]). Traditionally, this also includes, along with granting exploitation, duplication and distribution rights (cf. §§ 15 ff. Copyright Act), protection of the creator’s moral rights to a work, including the right of publication (cf. §§ 12 ff. Copyright Act; BVerfGE 58, 137 <146>). Copyright aims to safeguard both the material and the non-material interests of the creator with regard to their work. According to the understanding prevalent today, which also served as justification when the Copyright Act was first signed into law in 1965 (cf. the reasons provided with the government draft bill of 23 March 1962 (Bundestag document, Bundestagsdrucksache – BTDrucks IV/270, p. 43), the elements of property rights and personality rights belonging to the creator’s legal status make up an inseparable, multifaceted and extensively interconnected whole (so-called monistic theory, […]). Furthermore, regulations which place certain restrictions on the rights of creators in the general interest, namely by allowing certain kinds of use, have also always been part of copyright (cf. §§ 44a ff. Copyright Act; implicitly – without addressing the question of legislative competence – BVerfGE 31, 229 <241 f.>; 49, 382 <391 ff.>).

46

The area of ‘publishing’ is, when considering its systematic structure, the legislative history of the competence clause as well as the regulatory history and state practice in this area, closely related to copyright within the meaning of Art. 73(1) no. 9 of the Basic Law. Publishing law only encompasses those aspects of publishing which concern the relationship between the creator and the publisher, particularly the rights and obligations of the publisher to reproduce and distribute the works provided to them for this purpose by the creator (cf. § 1 Publishing Act; BVerfGE 58, 137 <146>; […]).

47

2. In view of the foregoing, § 44(6) of the Baden-Württemberg Higher Education Act is a law relating to copyright within the meaning of Art. 73(1) no. 9 of the Basic Law (see a) below). This classification is not called into question due to connections that the provision may have to higher education or public service law (see b) below); ([...]).

48

a) The regulatory content (see aa) below) and statutory purpose and effect (see bb) below) of § 44(6) of the Baden-Württemberg Higher Education Act are those of copyright.

49

aa) The immediate subject matter of the provision is an authorisation for institutions of higher education to enact bylaws which obligate academic staff at those institutions to exercise their right to non-commercial secondary publication of academic papers written in the fulfilment of their employment obligations (first sentence), to enact exceptions from such obligation (second sentence) and to stipulate a specific repository to implement this obligation (third sentence). The attribution of legislative competence for this authorisation to enact bylaws follows from the rules of the bylaws it authorises. Contrary to what the respondent in the initial proceedings alleges, an attribution of § 44(6) of the Baden-Württemberg Higher Education Act to Art. 73(1) no. 9 of the Basic Law cannot be ruled out by considering that the authorisation is only addressed to higher education institutions and not the authors of academic papers and therefore could constitute an aspect of the autonomy of science enshrined in the Basic Law. Neither does the autonomous right to enact laws of a self-governing body within the jurisdiction of a Land extend to matters for which the Basic Law grants exclusive legislative competence to the Federation, nor does the Land have the authority to expand such a right to enact laws to such matters without an explicit authorisation in a federal law within the meaning of Art. 71 of the Basic Law. The Land is also barred from passing legislation in an area for which the Federation has the exclusive legislative competence by using its right to grant an authorisation to enact bylaws.

50

The direct regulatory subject of the bylaws pursuant to § 44(6) of the Baden-Württemberg Higher Education Act is the obligation of academic staff of higher education institutions to exercise their ‘right to a non-commercial secondary publication’ with regard to ‘academic papers’ that have first been published ‘in a collection appearing at least twice a year’. Thus, the regulatory effect of § 44(6) of the Baden-Württemberg Higher Education Act, according to its wording and legislative history (cf. LTDrucks BW 15/4684, p. 215), is based on the secondary publication right of the authors of academic publications under § 38(4) of the Copyright Act. Such publications are protected under copyright as literary works or illustrations of a scientific nature within the meaning of § 2(1) nos. 1 and 7 of the Copyright Act ([...]). A mere link between the requirements prescribed in a provision and the terminology of copyright or a legal position under copyright cannot on its own lead to an attribution of that provision to the field of copyright (cf. BVerfGE 58, 137 <145 f.>). However, § 44(6) of the Baden-Württemberg Higher Education Act goes beyond such a mere link. According to the provision, higher education institutions are required to oblige their academic staff to make use of their right to secondary publication under § 38(4) of the Copyright Act – including when necessary through the use of a specific repository for this purpose – for academic papers written as part of the fulfilment of their employment obligations. According to this, the addressees of the rules established by the corresponding bylaws are obligated to exercise a right which is granted to them as authors of the papers in question. The exercise of this right is regulated. Those affected by the bylaws no longer have the right to determine whether, when, and – if the use of a repository is required – how to exercise the right to secondary publication. In this regard, their freedom of decision is revoked. Subject to exceptions laid down in § 44(6) second sentence of the Baden-Württemberg Higher Education Act, the respective author must republish their papers after one year from the time of first publication and may be required to use one specific repository. It is not the authors themselves, but rather the higher education institutions who decide whether and how the secondary publication right is exercised by enacting bylaws. By giving higher education institutions the option to also stipulate a specific repository in which to publish, they are, in effect, granted license to publish a paper on their own platforms, even against the will of the author.

51

It is irrelevant for the copyright-related nature of the secondary publication obligation in the constitutional understanding imparted in Art. 73(1) no. 9 of the Basic Law that, according to the prevalent opinion, the right to publication under § 12(1) of the Copyright Act only applies to the first publication ([...]). Beyond the fact that the relevant academic paper is made publicly available for a second time when making the so-called secondary publication under § 44(6) first sentence of the Baden-Württemberg Higher Education Act (cf. also § 38(4) first sentence Copyright Act: ‘has the right, [...] to make the publication available to the public’) and is thus exploited within the meaning of the Copyright Act (cf. § 15(2) second sentence no. 2, § 19a Copyright Act; [...]), it is irrelevant for the classification under constitutional law whether the secondary publication is categorised as a use or an exploitation under ordinary law. The term ‘copyright’, as used in the Constitution, encompasses all provisions which protect the creator’s intellectual and personal relationship to the work they created and in regard to the use of such work. By introducing an obligation to make a creation publicly available (again), possibly even combined with the forum in which the publication must be made (repository), this relationship is legally structured.

52

Nor does the fact that § 44(6) of the Baden-Württemberg Higher Education Act only concerns ‘non-commercial’ secondary publication preclude it from falling within the category of ‘copyright’. To the extent that the respondent in the initial proceedings disputes this by claiming that copyright only includes those provisions whose focus is the exclusive attribution and exploitation of creations with the aim to enable the creator to lead a financially independent life and – only secondarily – to safeguard their intellectual and personal interests in the creation, this narrow interpretation is not compatible with the constitutional understanding of copyright. According to this understanding, ensuring the non-material interests of the creator with regard to their work is a part of copyright that is not subordinate or accessorial, but rather equivalent to the protection of financial interests. Consequently, the exploitation rights under the Copyright Act currently in force are not limited to commercial or material types of use ([...]).

53

bb) The statutory purpose and effect of § 44(6) of the Baden-Württemberg Higher Education Act also argue in favour of its classification as copyright.

54

The obligation for authors to make a non-commercial secondary publication of their academic papers is intended, in the spirit of open access principles, to ‘make it easier for researchers and others interested in scientific progress to access academic papers’ (cf. LTDrucks BW 15/4684, p. 215). § 44(6) of the Baden-Württemberg Higher Education Act shares with § 38(4) of the Copyright Act the aim of open access to scientific information and dissemination of research and knowledge (regarding the aims of § 38(4) Copyright Act cf. BTDrucks 17/13423, p. 9). While the federal law in § 38(4) of the Copyright Act, as a law establishing contractual rights with regard to intellectual property (cf. BTDrucks 17/13423, p. 10; [...]), grants authors an inalienable right to secondary publication without obligating them to exercise such right, the freedom of decision granted by this provision is in principle revoked from the authors affected by § 44(6) of the Baden-Württemberg Higher Education Act through bylaws enacted on such basis. The authors are obligated to exercise their right to secondary publication. The restriction on the rights of authors also provides third parties who are granted access through the obligatory secondary publication the ability to use these papers. While § 44(6) of the Baden-Württemberg Higher Education Act does not make explicit prescriptions regarding the rights of use of third parties that would be governed by the provisions of the Copyright Act, third parties attain a factual ability to use the protected papers only as a consequence of the obligation to make them publicly available. The ability to use protected papers is the inevitable and intended consequence of the obligation. Additionally, an obligation to publish a paper in a repository controlled by the higher education institution introduced in the bylaws corresponds to a right of use of the respective institution ([...]).

55

Thus, according to its effect, § 44(6) of the Baden-Württemberg Higher Education Act constitutes a restriction on the affected authors’ copyright. This type of restriction on the powers of authors in the general interest has always belonged to the area of copyright. This is particularly true for restrictions benefitting education and science. Provisions to this effect are included in §§ 60a ff. of the Copyright Act on ‘uses permitted by law for teaching, science and institutions’ – this being the official title of subdivision 4 of division 6 of the Copyright Act. Examples of such provisions can even be found in pre-constitutional times (cf. § 19(1) no. 2 and 4, § 21 no. 2 and 3 Literary Works Copyright Act; § 19 Performing Arts Copyright Act 1907). § 44(6) of the Baden-Württemberg Higher Education Act adds another component to this copyright-specific balance between the individual interests of authors and the public interest in academic intellectual creations.

56

b) The connections between § 44(6) of the Baden-Württemberg Higher Education Act and institutions of higher education or public service law, i.e. areas in which the Länder have legislative competence (see aa) below), do not yield a different result (see bb) below).

57

aa) Since the First Reform of the Federal System (Föderalismusreform I) in 2006 and its abolition of the Federation’s right to framework legislation for all general principles of higher education previously laid down in Art. 75(1) first sentence no. 1a of the Basic Law (former version), the right of the Länder to legislate in Art. 70(1) of the Basic Law extends to all aspects of higher education with the exception of admission to higher education and the law of higher education degrees (cf. Art. 74(1) no. 33 of the Basic Law). It also encompasses the public service law for the higher education institutions’ staff. Since the repeal of the legislative competence of the Federation under Art. 75(1) first sentence no. 1 of the Basic Law (former version) for framework legislation regarding legal relationships of persons in the civil service of the Länder, municipalities and other legal entities under public law, which applied to both civil servants and public employees (cf. Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 32 with further references), as well as, in particular, the public service law of the higher education institutions’ staff (cf. BVerfGE 111, 226 <258>), the Länder – with the exception of the rights and obligations of civil servants and judges with regard to their status (cf. Art. 74(1) no. 27 of the Basic Law) – possess legislative competence in this area pursuant to Art. 70 of the Basic Law (cf. Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 32).

58

bb) The present case does not require a further specification of the scope of these legislative competences of the Länder – or a distinction from the concurrent legislative competence for the rights and obligations of civil servants under Art. 74(1) no. 27 of the Basic Law ([...]) and for employment law under Art. 74(1) no. 12 of the Basic Law (on the distinction of public service law and employment law cf. Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 33 with further references). There is also no need to make a general declaration as to the prerequisites which provisions of Land law pertaining to copyrighted and in particular academic publications must fulfil in order to be compatible with the Constitution. The character of the challenged provision in § 44(6) of the Baden-Württemberg Higher Education Act as a law relating to copyright, as demonstrated by its direct regulatory subject, its objective statutory purpose and its primary effect, is in no way altered by its connections to higher education or public service law. This applies both in regard to the entities addressed by the provision (see (1) below) and the statutory purpose (see (2) below). The provision is also not sufficiently closely interlinked with the provisions of Land higher education law in a way that it appears to be part of the comprehensive legislation focused on higher education or public service law (see (3) below).

59

(1) The authorisation to enact bylaws introduced in § 44(6) of the Baden-Württemberg Higher Education Act is directed at the higher education institutions of the Land; the bylaws enacted by the higher education institutions on this basis are addressed to their academic staff within the meaning § 44(1) and (2) of the Baden-Württemberg Higher Education Act (cf. § 44(6) first sentence Baden-Württemberg Higher Education Act). That the group of possible addressees of the provision is limited to persons involved in higher education does not alter the fact that the affected persons – as already set out above (cf. para. 50) – are called on to exercise their legal right to secondary publication which belongs to them as authors of the relevant academic papers. They are obligated to exercise precisely this right. This substantive regulatory content, which concerns issues that can be genuinely classified as copyright, is the decisive factor for the attribution of legislative competence. To this extent, § 44(6) of the Baden-Württemberg Higher Education Act, in its personal scope of application, establishes a legal regime distinct from that of § 38(4) of the Copyright Act in that – by using the respective institutions bylaws – it cloaks itself as an employment obligation of the group of academic staff affected by the provision and transfigures the right to secondary publication of academic papers into an obligation to do so in order to serve the public interest (on the classification of a provision according to its material content and not its formal appearance cf. also BVerfGE 160, 1 <33 para. 89, 34 ff. paras. 96 ff.>).

60

(2) The significance of § 44(6) of the Baden-Württemberg Higher Education Act’s regulatory content, which is specifically directed at copyright, for the attribution of legislative competence is not diminished by the fact that the provision is linked to institutions of higher education, to the academic system or to the process of scientific discovery, even insofar as the legislative aim of the so-called secondary publication obligation is to ensure the reasonable dissemination of academic knowledge achieved through the Land’s higher education institutions (cf. LTDrucks BW 15/4684, p. 215). This is because this aim does not empower the Land to encroach on the exclusive legislative competence of the Federation, which includes the very right to enact restrictions on the rights of authors to their intellectual property in the interest of academic research as part of the area of copyright (cf. paras. 54 f. above).

61

(3) Nor does a legislative competence on the part of the Land follow from a close interconnection of § 44(6) of the Baden-Württemberg Higher Education Act with other provisions in the Act as a form of comprehensive legislation in higher education law or public service law. This is the case both with regard to § 44 of the Baden-Württemberg Higher Education Act itself (see (a) below) as well as beyond this individual provision (see (b) below).

62

(a) The provision in § 44 of the Baden-Württemberg Higher Education Act is titled ‘staff’. In its paragraphs (1) and (2), it contains prescriptions on the composition of the academic staff of higher education institutions. It differentiates between full-time academic staff and other academic staff. According to paragraph (3), the public service-related provisions applicable to academic staff also apply mutatis mutandis to artistic staff. Paragraph (4) contains an authorisation for the Ministry of Science to regulate the extent of the full-time personnel’s teaching requirement by way of an ordinance. Paragraph (5) establishes a special disciplinary provision regarding the statute of limitations for disciplinary action against misconduct in the form of violations of generally accepted principles of good scientific practice. According to paragraph (7), the Act on the Recognition of the Equivalence of Foreign Professional Qualifications in Baden-Württemberg (Gesetz zur Feststellung der Gleichwertigkeit ausländischer Berufsqualifikationen in Baden-Württemberg, Berufsqualifikationsfeststellungsgesetz Baden-Württemberg) does not apply to foreign professional qualifications required under §§ 44 ff. of the Baden-Württemberg Higher Education Act.

63

A close interconnection of the statutory authorisation of bylaws at issue in these proceedings and the aforementioned provisions is out of the question. In particular, an interconnection does not follow from determining the personal scope of application of those subject to the secondary publication obligation (‘academic staff of the respective higher education institution’) to the groups identified in § 44(1) and (2) of the Baden-Württemberg Higher Education Act. The legal definition of ‘academic staff’ in § 44(1) and (2) of the Baden-Württemberg Higher Education Act has no independent regulatory content aside from it defining the terminology. It serves as a common point of reference – placed, as it were, as an overarching definition for the sake of simplicity and greater clarity – for all substantive provisions of the law relating to these uniformly defined groups of persons. However, this does not lead to the individual provisions being linked into one uniform legal framework. There is also no close relationship between § 44(6) of the Baden-Württemberg Higher Education Act and the provision’s other paragraphs that would go beyond this. The mere fact that paragraphs (4) and (5) also address the employment obligations of the academic staff at higher education institutions does not serve to establish such a relationship.

64

(b) Even looking beyond § 44 of the Baden-Württemberg Higher Education Act, it is not ascertainable that § 44(6) is closely interconnected with other provisions of the Act and therefore should not be assessed independently with regard to competences.

65

This is especially true for the provision concerning the duties of higher education institutions drawn upon for this purpose by the respondent in the initial proceedings, namely the duty to sustain and develop science and the arts through research (§ 2(1) Baden-Württemberg Higher Education Act), to promote the practical implementation and application of research and development outcomes, as well as open access to academic information through the transfer of knowledge, expertise and technology (§ 2(5) third sentence Baden-Württemberg Higher Education Act), to keep the public regularly informed of the fulfilment of the tasks and the outcomes thereby achieved (§ 2(9) Baden-Württemberg Higher Education Act), to provide all members of the higher education institutions with information (§ 28 Baden-Württemberg Higher Education Act) and to develop and implement practical application of academic findings (§ 40(1) Baden-Württemberg Higher Education Act). The fact that the so-called secondary publication obligation under § 44(6) of the Baden-Württemberg Higher Education Act may aid these aims does not overcome the fact that the provision in question has a considerable independent regulatory content that places its focus in copyright.

66

It has further been pointed out that, deviating from other provisions of the Baden-Württemberg Higher Education Act, in which the publication or distribution of ‘results of research’ and ‘research results’ is addressed (cf. § 3(2) first sentence, § 13(2) first sentence no. 9, § 40(2), § 41(1) second and third sentence Baden-Württemberg Higher Education Act), § 44(6) of the Baden-Württemberg Higher Education Act – based on the wording of § 38(4) of the Copyright Act – speaks of the secondary publication of ‘academic papers’ ([...]). This variation in wording, too, suggests that the provision is not closely interconnected with other provisions of the law.

IV. 

67

§ 44(6) of the Baden-Württemberg Higher Education Act is incompatible with Art. 71 and Art. 73(1) no. 9 of the Basic Law and therefore must be declared void (§ 82(1) in conjunction with § 78 first sentence Federal Constitutional Court Act).

68

The reasons for the unconstitutionality of § 44(6) of the Baden-Württemberg Higher Education Act in the original version of the Third Act Amending Higher Education Law of 1 April 2014, the version relevant in the initial proceedings, apply equally to the version of the provision following the Fourth Act Amending Higher Education Law of 17 December 2020 applicable until today, which is essentially alike in substance. In the interest of legal clarity, the decision must be extended to this version of § 44(6) of the Baden-Württemberg Higher Education Act (cf. BVerfGE 133, 241 <272 para. 89>; 160, 41 <78 para. 92> – Favourable tax treatment of ‘profit income’; 164, 139 <192 para. 151> – Corporation tax reduction potential III) according to § 78 second sentence of the Federal Constitutional Court Act (in conjunction with § 82(1) Federal Constitutional Court Act).

D. 

69

The decision was taken with 6:2 votes.