Deposit copy decision

Deposit copy
Decided July 14, 1981
File number : 1 BvL 24/78 Reference: BVerfGE 58, 137 Kind of action : concrete control of norms Facts: The Hessian Act on Freedom and Law of the Press ordered the obligation to submit a specimen (deposit copy ) of every printed work appearing within the scope of the law without any reimbursement of costs. A publisher turned against this and published high-quality printed works in small editions.
statement
Section 9 of the Hessian Act on Freedom and Law of the Press in the version published on November 20, 1958 (GVBl. P. 183) is incompatible with Article 14, Paragraph 1, Clause 1 of the Basic Law insofar as the Hessian Minister of Education and Cultural Affairs is authorized to Obligation to order the delivery of a document from every printed work published within the scope of the law without exception without reimbursement of costs.
Positions
The decision was made by: Benda , Böhmer , Simon , Faller , Hesse , Katzenstein , Niemeyer , Heussner Deviating vote:
Applied Law
Art. 14 para. 1 GG

The deposit copy decision of July 14, 1981 is a decision of the Federal Constitutional Court on the freedom of ownership laid down in Article 14 of the Basic Law (GG) and the content and limitation provisions mentioned in Article 14, Paragraph 1, Sentence 2 of the Basic Law . In the ruling, the court decided that there may be statutory restrictions on property law that are subject to compensation (“content and limitation provisions subject to compensation”). The decision thus represents an essential decision on state liability law .

facts

It was a decision in the context of a specific norm review . The Darmstadt Administrative Court had submitted the following case to the Federal Constitutional Court, because it had doubts about the constitutionality of the statutory obligation to submit mandatory copies to state libraries.

The then applicable section 9 of the Hessian Act on Freedom and Law of the Press - LPrG - in the version published on November 20, 1958, provided for the following regulation:

"The Minister of Culture and Education can determine by implementing ordinance that a specimen of every printed work appearing within the scope of this law is delivered free of charge to the library responsible he has determined."

From this statutory authorization , the Ministry had made use by a Legal Deposit Act (PflEVO) had been issued. Section 1 (1) of the PflEVO provided for the following regulation:

"Unless exempted from Section 3 , the publisher must hand over a copy (deposit copy) of every printed work that appears within the State of Hesse free of charge and at his own expense, depending on the place of publication, to the following libraries: ..."

As a publisher, they understood Regulation also the author of works in the self-published were published, publisher of printing units and the Commission Publishers (§ 2 PflEVO). The deposit copy was to be submitted immediately upon publication (§ 5 PflEVO).

The plaintiff in the main proceedings before the administrative court was a publisher based in Offenbach am Main . He had specialized in the publishing of short-run bibliophile books and original graphics. In 1976 he sent four works with editions between 70 and 625 pieces and prices between 180 and 625  DM to the Hessian State and University Library in Darmstadt . This kept the works as deposit copies and issued a corresponding notification. The plaintiff filed an unsuccessful objection against this and finally brought an action before the Darmstadt Administrative Court (Az .: IE 153/77).

Opinions

In the proceedings before the Federal Constitutional Court, the Prime Minister of Hesse took the government of the Federal Republic of Germany through the Federal Minister of the Interior , the III. Civil Senate of the Federal Court of Justice and the VII. Senate of the Federal Administrative Court position.

• The Prime Minister of Hesse took the view that the regulation in question was constitutional. For reasons of cultural policy, the social obligation attached to the right to property according to Article 14.2 of the Basic Law is clarified. The economic burden of submitting the deposit copy would be included in the overall calculation of the publisher and would be passed on to the buyer. This represents the publishers' normal economic risk.
• The federal government pointed out that the law on the German library of March 31, 1969 provides for the possibility of granting depositors a fee on request if the free submission represents an unreasonable burden.
• The III. The civil senate stated that in its highest court rulings on state liability in the event of interference with freedom of property, it determined the “victim limit under expropriation law” according to whether the interference was so significant in terms of duration, type, intensity and impact that the person concerned would no longer be expected to accept it without compensation could. However, the Senate has not yet had to decide on a specific comparable case.
• The Seventh Senate of the Federal Administrative Court took the view that the obligation to submit deposit copies had no expropriating effect. It is a permissible content and limitation determination according to Article 14.1 sentence 2 of the Basic Law.

Decision of the court

The Federal Constitutional Court ruled that Section 9 of the Hessian State Press Act (LPrG) as an authorizing norm for the issuance of the deposit copy regulation was not compatible with the Basic Law and in particular not with Article 14 of the Basic Law, insofar as the Hessian Minister of Education and Cultural Affairs was empowered to submit a document to be ordered from every printed work appearing within the scope of the law without exception without reimbursement of costs.

The Federal Constitutional Court initially distinguished the encroachment from expropriation (Article 14.3 of the Basic Law) by making mandatory copies . The regulation does not provide for the executive to be entitled to a specific asset, but rather the entire circulation is burdened with a duty to submit a copy to be selected by the publisher. The content of the property is therefore determined in a general form (content and limitation determination). Determination of content and expropriation have different functions and therefore also requirements. Contrary to the opinion of the referring administrative court, nothing will change here if the regulation in question is unconstitutional.

In the opinion of the Federal Constitutional Court, however, the provisions of § 9 LPrG are not void for formal reasons due to a violation of the legal reservation as provided for in Art. 14.1 sentence 2 GG. A content and limitation determination could also be formulated permissibly by granting the authorization to issue a regulation. Art. 14.1 sentence 2 GG provides for a limitation of the freedom of property “by law”, but the legislature does not have to regulate everything down to every little thing. In this respect, the legislature is merely required to define the conditions under which the use of property may be restricted by means of an authorization that is sufficiently determined in terms of content, purpose and extent. The regulation of § 9 LPrG is sufficient.

However, the authorization to issue ordinances in § 9 LPrG materially violates Article 14, Paragraph 1, Sentence 1GG, since the Hessian minister of education was empowered to order the obligation to submit a deposit copy without any exceptions without reimbursement of costs. When enacting laws, the legislature had to observe in the same way the constitutional recognition of private property according to Article 14.1 sentence 1 of the Basic Law and, on the other hand, the social obligation of property according to Article 14.2 of the Basic Law. In doing so, he must bring the legitimate interests of all parties involved in a fair balance and in a balanced relationship to one another. The social bond of property, which the legislature permissibly expects of the owner through the Basic Law and which the legislature has to specify, depends essentially on whether and to what extent the property has a social relationship and a social function. Accordingly, property ties would always have to be proportionate and not place an excessive burden on the owner in terms of the social relationship and the social significance of the property as well as in view of the regulatory purpose and unreasonably affect the property law. The principle of equality should also be observed as an expression of the rule of law .

In principle, it is permissible to issue an obligation to submit specimen copies within the framework of the content and limitation provisions, provided that the resulting financial burden on the publisher is not significant. This is justified by the fact that printed works develop a life of their own after publication and have an impact on society. It is about the cultural and intellectual events co-determining factors. Printed works would thereby become intellectual and cultural common property. Taking into account the social obligation of property, it is a legitimate concern to make literary products accessible to those interested in science and culture as closely as possible and to give future generations a comprehensive impression of the intellectual work of earlier eras. The social significance and function of printed works are adequately taken into account through a free submission obligation, provided that the associated economic disadvantage for the publisher is not significant. This can be assumed for the majority of modern publications, since these are printed in larger editions.

The regulation is unconstitutional insofar as the general obligation to deliver, with the indiscriminate exclusion of cost reimbursement, also includes printed works that are produced with great effort and at the same time only in small editions. In contrast to cheap and mass productions, the obligation to provide free of charge specimens of such printing works is a significant burden. This burden for publishers of such products in the general interest would no longer be justified by Article 14.1 sentence 2 of the Basic Law be. Publishers of artistically high-quality printed works would take a significantly higher economic risk because of the small print runs. The general public's interest in such artistically, scientifically and literarily exclusive works would only be possible through the private initiative and willingness to take risks of such publishers as the plaintiff. It would contradict the constitutional requirement to balance the interests of the owner concerned with those of the general public and to avoid unilateral burdens if such publishers were burdened with the considerably above-average production costs for a deposit copy in addition to this additional economic risk. The compulsory free delivery of valuable printed works with low print runs would therefore exceed the limits of a proportionate and still reasonable definition of the content of the publisher's property.

implementation

To implement the deposit copy decision, the federal and state governments have issued various regulations. The compensation is partly based on the retail price, partly (differently defined) production costs, partly a combination of both. Status of the following table: 2017.

Area	Legal source	small edition	big effort (EUR)	Assessment basis for expenses or compensation	Amount of compensation
Germany	PflAV (October 17, 2008) § 6	300 (sheet music: 50)	80 (non-commercial / freelance: 20)	Production cost (cost of reproduction) & price	Selling price (max.); basically manufacturing costs
Baden-Württemberg	Legal Deposit Act (March 3, 1976) Section 1, Paragraph 5	k. A.	k. A.	Retail price	Half of the retail price (max.)
Bavaria	PflStER (October 1, 2006)	500	75 (non-commercial: 25)	Production costs (typesetting, paper, printing, binding, author's fees) & price	Half of the store price, subscription, preferential or subscription price (max.); basically 100/80% of the calculation basis (production costs plus 40% of this as flat-rate overheads)
Berlin	PflExG (July 15, 2005) § 5	k. A.	k. A.	k. A.	"Adequate compensation"
Brandenburg	BbgPG (May 13, 1993) Section 13	k. A.	k. A.	Manufacturing costs	Manufacturing costs
Bremen	k. A.	k. A.	k. A.	k. A.	k. A.
Hamburg	PEG (September 14, 1988) Section 4 Paragraph 2	k. A.	k. A.	Cost	Cost
Hesse	Ordinance (December 12, 1984) Section 6	(500)	(51)	Manufacturing costs	Production costs ("grant")
Mecklenburg-Western Pomerania	LPrG MV (June 6, 1993) Section 11 Paragraph 3	500	102	Retail price	Half of the retail price
Lower Saxony	NPresseG (March 22, 1965) Section 12 Paragraph 3	500	100	Retail price	Half of the retail price
North Rhine-Westphalia	Legal deposit law (January 29, 2013) § 7	300	200	Retail price	Half of the retail price
Rhineland-Palatinate	Administrative regulation of March 30, 2006	500	75 (non-commercial: 25)	Production costs (typesetting, paper, printing, binding, author's fees) & price	Half of the retail or sales price (max.); basically 100/80% of the calculation basis (production costs plus 40% of this as flat-rate overheads)
Saarland	PflAV (November 8, 2016) § 3	300	150	Production costs (costs of reproduction)	Production costs (half)
Saxony	SächsPresseG (April 3, 1992) Section 11 Paragraph 6	k. A.	k. A.	Manufacturing costs	Manufacturing costs (max.)
Saxony-Anhalt	State Press Act (May 2, 2013) Section 11 Paragraph 3	500	100	Retail price	Half of the retail price
Schleswig-Holstein	BiblG (August 30, 2016) Section 10 Paragraph 2	k. A.	k. A.	Cost	Cost (max.)
Thuringia	TPG (July 31, 1991) Section 12 Paragraph 1	k. A.	k. A.	Manufacturing costs	Manufacturing costs

However, the library also has the option of waiving delivery.

literature

• Jürgen Eschenbach: The content provision subject to compensation. In: Legal Education 1998, pp. 401–403
• Karl Eckhart Heinz: On the dogmatics of the "social obligation" of property according to Art. 14 para. 2 GG. In: Archive for Press Law 2007, pp. 94–97
• Hildebert Kirchner : Order of the Federal Constitutional Court of July 14, 1981 - 1 BvL 24/78 - on the right to deposit copies. In: Zeitschrift für Bibliothekswesen und Bibliographie 1982, pp. 82–84
• Karl-Friedrich Meyer: The legal deposit right from a legal point of view. In: Communications of the Working Group for Legal Library and Documentation 1983, pp. 61–70
• Bertold Picard: The reimbursement of the production costs of deposit copies according to the Hessian ordinance on the delivery of printed works of December 12, 1984. In: Zeitschrift für Bibliothekswesen und Bibliographie 1986 , pp. 16-22
• Hermann Weber : Constitutional limits for expropriation and definition of the content of property. In: Juristische Schulung 1982, pp. 852–856

Individual evidence

1. ↑ Az. 1 BvL 24/78 , BVerfGE 58, 137
2. ↑ Hess. GVBl. 1958, p. 183
3. ↑ Ordinance of March 21, 1977, hess. GVBl. P. 146.
4. ↑ BGBl.  I, 1969, p. 265.
5. ↑ self-published also costs of the manuscript, BayVGH , judgment of November 4, 1992 (7 B 90.3264)
6. ↑ ^{a b} HessVGH , judgment of December 8, 1987 (IX OE 46/82) in the procedure on which the decision of the Federal Constitutional Court is based
7. ↑ OVG RP , judgment of October 5, 2009 (2 A 10243 / 09.OVG); Burkhardt in Löffler , press law (6th edition 2015), § 12 LPG Anh, Rn 32