Freedom of Information *

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1 Joachim Wieland Freedom of Information * A. Introduction 84 B. Analysis of German and European Law 84 I. Article 5 Subsection 1 1 st Sentence German Basic Law 84 II. Article 10 European Convention on Human Rights 86 III. Sections 29, 30 Federal Law on Administrative Procedure 88 IV. Section 30 Tax Code 91 V. European Law Internal Codes 92 a. Common Code of Conduct 92 b. Jurisdiction Primary Law 93 a. The Treaty of Amsterdam 93 b. Access according to Articles 85, 86 EC Treaty Secondary Law and its impact on national (esp. German) law: The Federal Law on Information about the Environment 94 C. Different approaches concerning access to information held by the State 98 I. German Tradition: The Denial of Access 98 II. The European Approach: Access to Information as an Implementation Tool of the Law 99 D Intellectual Property 100 E. Conclusions 103 * I thank my assistant Ms. Petra Helbig for her assistance in preparing this article. 83

2 A. Introduction Freedom of information is closely related to freedom of expression. Both freedoms together establish a marketplace of ideas, which is fundamental not only for the development of a free personality, but also for a democratic government. Without freedom of information, freedom of expression is useless. Article 19 Universal Declaration of Human Rights (1948) acknowledges this fact by including the freedom to seek, receive and impart information and ideas through any media and regardless of frontiers in the right to freedom of opinion and expression. The same concept is expressed in Article 19 Subsection 2 of the International Covenant on Civil and Political Rights (1966). Freedom of information seems to be a global notion. But, on closer examination, this freedom, like others, is influenced by local values in terms of its legal meaning. I will therefore try to give you an impression of the German and European interpretation of that global concept of freedom of information. B. Analysis of German and European Law To begin with, I would like to present a brief analysis of German and European law relating to the freedom of information. I. Article 5 Subsection 1 1 st Sentence German Basic Law The legal basis for freedom of information in Germany is Article 5 Subsection 1 1 st Sentence of the German Constitution, the Basic Law (BL). Article 5 Subsections 1 and 2 read as follows: (1) Everyone shall have the right to express and disseminate his opinion freely by speech, writing and pictures and to inform himself freely from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship. (2) These rights are limited by the provisions of general laws, the provision of law for the protection of youth and by the right to inviolability of personal honour. The wording of Article 5 grants the right to obtain information and to use the appropriate means to obtain access to information (like antennae). Source stands for any person or thing containing information (e.g. newspapers, files, letters, broadcasts) and therefore also includes papers and files of administrative agencies 1. Article 5 BL reduces the freedom of information to generally accessible sources. General accessibility is only understood in a technical sense, while it does not depend and may not be made depending on legality 2. Hence Article 5 BL grants access to all information 1 Schmidt-Jortzig, in: Kirchhof / Isensee (eds.), Handbuch des Staatsrechts, Vol. VI, 141 [30]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [57]. 2 BVerfGE 27, 71 (83); 33, 52 (65); Herzog, in: Maunz / Dürig (eds.), Grundgesetz, Kommentar, Art. 5 I, II [89]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [58]; 84

3 which is technically adapted and intended to inform the public 3. While this definition includes mass media and the Internet 4, it excludes files and papers of administrative agencies or administrative guidelines, because they are not intended to inform the public 5. Consequently, freedom of information is not guaranteed for information held by the State. This restrictive access to information held by the State was confirmed by the Federal Constitutional Court, which continually rules that the State is not obliged to render information or make information generally accessible 6. As far as the remaining sources are concerned that clear the hurdle of general accessibility, Article 5 Subsection 2 BL contains three conditions under which restrictions may be justified. The most important justifications are provisions of general laws that allow restrictions on freedom of expression as well as on freedom of information. But what are general laws? The answer of the Federal Constitutional Court is somehow cryptic: General is a law, which does not aim at the restriction of freedom of expression or information but which does protect a value more important than freedom of expression or information 7. The uncertainty about the meaning of general goes back to the 1920s and the Constitution of Weimar 8. If one follows the first - formal - part of the definition, the State has no right to ban Nazi propaganda 9. The Federal Constitutional Court - putting more emphasis on the second part of the definition - did not declare laws banning Nazi propaganda or penalising the denial of the holocaust unconstitutional 10. These laws intend to protect values more important than freedom of expression and information. This interpretation of the German constitution has to be seen as a reaction to our history. As a consequence, freedom of expression and information is subject to stronger restrictions by the provisions of general laws in Germany than in the USA. Wendt, in: v. Münch / Kunig (eds.), Grundgesetz, Kommentar, Art. 5 [23]. 3 BVerfGE 27, 71 (81); 33, 52 (65); 90, 27 (32); Herzog, in: Maunz / Dürig (eds.), Grundgesetz, Kommentar, Art. 5 I, II [89]; Jarass, in: Jarass / Pieroth (eds.), Grundgesetz, Kommentar, Art. 5 [13]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [58]. 4 BVerfGE 27, 71 (83); 90, 27 (32); Herzog, in: Maunz / Dürig (eds.), Grundgesetz, Kommentar, Art. 5 I, II [91]; Mecklenburg, Zeitschrift für Urheber und Medienrecht 1997, 525 (536). It also includes new media techniques: Bethge, in: Sachs (ed.), Grundgesetz, Kommentar, Art. 5 Rn. 54; Degenhardt, in: Dolzer (ed.), Bonner Kommentar zum Grundgesetz, Art. 5 I, II [228]. 5 BVerwGE 47, 247 (252); 61, 15 (22); especially pertaining to secret and confidential information: BVerfGE 57, 250 (270); 66, 116 (137); 71, 206 (220). 6 BVerfGE 28, 175 (188); 57, 250 (270); 66, 116 (137). 7 BVerfGE 7, 198 (209); 50, 234 (240); 59, 231 (263); 62, 230 (243); 71, 162 (175); 71, 206 (214); 95, 220 (235). 8 Bethge, in: Sachs (ed.), Grundgesetz, Kommentar, Art. 5 [136]; Herzog, in: Maunz / Dürig (eds.), Grundgesetz, Kommentar, Art. 5 I, II [249]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [107]. 9 Bethge, in: Sachs (ed.), Grundgesetz, Kommentar, Art. 5 [142]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [108]. 10 BVerfGE 90, 241 (246); 77, 240 (250). 85

4 Furthermore, pornography and violence are banned - rather theoretically than practically from broadcasts, papers etc. by the provisions of the youth protection law 11. The right to inviolability of personal honour has been discussed during the last ten years following decisions of the Federal Constitutional Court 12. One of these decisions dealt with the slogan Soldiers are murderers 13. The Court ruled that this expression is protected by freedom of information and does not violate the honour of German soldiers. This decision was severely criticized 14. Last, but not least, Article 5 Subsection 1 BL establishes the prohibition of censorship. This prohibition is understood to forbid only formal censorship before publication, and not fines or other punishments for publication 15. On the whole, Article 5 BL allows the legislators to restrict freedom of information as well as freedom of expression in the interest of other values deemed to be more important than those freedoms. The extent of permissible freedom enjoyed by the general population is very much dependent upon the decisions of the judiciary. II. Article 10 European Convention on Human Rights The European Convention on Human Rights (ECHR) was signed in Rome on November 4, 1950 and entered into force on September 3, Germany - among many other European States - ratified the Convention in 1954, thereby transforming it into German law. The ECHR is not considered to be part of constitutional law. As a statute, it does not prevail over later statutes according to the rule lex posterior derogat legi priori. Still, the Federal Constitutional Court takes its provisions into consideration when interpreting the freedoms guaranteed by the Basic Law 16. Moreover, Germany is obliged by international law to grant everyone within its jurisdiction the rights and freedoms defined in the Convention. The European Court of Human Rights in Strasbourg may be invoked by every German citizen (or every citizen of another member State of the Convention). It exerts compulsory jurisdiction. In our context, the provisions of Article 10 ECHR are relevant: (1) Everyone has the right to freedom of expression. This right shall include 11 BVerfGE 87, 209 (230); 30, 336 (347); Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [116]; Wendt, in: v. Münch / Kunig (eds.), Grundgesetz, Kommentar, Art. 5 [79]. 12 BVerfGE 93, 266 (290); 90, 241 (247); 82, 272 (280); 61, 1 (7); 66, 116 (151); 54, 129 (136); 24, 278 (282); 12, 113 (124). 13 BVerfGE 93, Zuck, Juristenzeitung 1996, 364; Mager, Juristische Ausbildung 1996, 405 (408); Otto, Juristische Ausbildung 1997, 139 (142); Hufen, Juristische Schulung 1996, 738 (740). 15 BVerfGE 87, 209 (230); 83, 130 (155); 33, 52 (71); 47, 198 (236); Bethge, in: Sachs (ed.), Grundgesetz, Kommentar, Art. 5 [131]; Jarass, in: Jarass / Pieroth (eds.), Grundgesetz, Kommentar, Art. 5 [52]; Schulze-Fielitz, in: Dreier (ed.), Grundgesetz, Kommentar, Art. 5 I, II [ 139]; dissenting opinion: Hoffmann-Riem, in: Wassermann (ed.) Alternativkommentar zum Grundgesetz, Art. 5 I, II [78]. 16 BVerfGE 74, 358 (370); 35, 311 (320). 86

5 freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary. The text itself suggests that there are far more conditions and restrictions than freedom guaranteed. But, as a basic freedom of communication, Article 10 ECHR protects amongst others information traffic in the new media, especially the exchange of information in the Internet. In one of its leading cases 17 the Court in Strasbourg stressed the importance of freedom of expression. According to the Court, Article 10 ECHR constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man and woman. That implies that Article 10 is applicable not only to information or ideas that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad mindedness, without which there is no democratic society. This description resembles the American concept of a free marketplace of ideas 18. Article 10 ECHR does not protect access to information. This was stressed by the Court in 1987, when it dealt with the case of an applicant who demanded access to confidential information in government files, on the basis of which he believed he had been denied a job 19. Article 10 ECHR imposes the general duty on member States not to obstruct access to information which is available 20. The States are only obliged to grant access to information which is already available 21. Moreover, the Court acknowledges a margin of appreciation to the States whether interference with the freedom of expression is necessary in a democratic society. It is for the State to show that there is a pressing social need for the interference. In 17 Handyside vs. UK - EGMR, EuGRZ 1977, McIntire vs. Ohio elections comm n, 514 U.S. 334 (1995); Rosenberger, vs., University of Va, 515 U.S. 819 (1995); Milkovich vs. Lorain Journal Co., 497 U.S. 1 (1990); Denver Area Educational Telecommunications Consortium Inc. at all vs. F.C.C., 518 U.S. 727 (1996). 19 Atkinson vs. U.K., D /87, Decisions and Reports 67, 244, Leander vs. S, GH 116, 29 [74]; Gaskin vs. UK, GH 160, 21, [51]. 21 Frowein, in: Frowein / Peukert, EMRK-Kommentar, 1996, Art. 10 Rn

6 this context, the issue of proportionality of the interference to its objective has come to play a prominent part in freedom of information cases 22. III. Sections 29, 30 Federal Law on Administrative Procedure German administrative law is dominated by the principle of secrecy of administrative procedures as opposed to the U.S. tradition 23 that places high regard on freedom of information and that grants free access to information 24. There is no general right to access to records in German Public Law. But there are several specific provisions regulating access to records 25. The adoption of Sections 29 and 30 of the Federal Law on Administrative Procedure (FLAP) in 1977 marks a significant step from secrecy to a higher degree of transparency in public administration 26. They establish the so-called principle of limited publicity of administrative records 27, which is the result of a long and controversial debate 28. Sections 29 and 30 read as follows: Section 29: Access to Records by Participants (1) Each agency is to make the records of an administrative procedure available for access to its participants to the extent that knowledge of their contents is necessary for the enforcement or defense of the legal interests of such participants. Sentence 1 is inapplicable until the closing of an administrative procedure in respect of drafts for a decision or preparatory work directly related to such decisions. In case of a representation according to sec. 17 and 18 of this Law, solely the representative is entitled to access to records. (2) An agency may deny access to records as far as such would either affect the proper fulfilment of its functions, or the disclosure of facts contained therein would endanger the vital interests of the Federal State or of any of the Laender, or because the proceedings are to be kept secret by statutory requirement or by virtue of their character, in particular by reason of the legitimate interests of a participant or those of a third party. 22 Lingens, Europäische Grundrechte-Zeitschrift 1986, 424 (429, [47]); Oberschlick, Europäische Grundrechte-Zeitschrift 1991, 216 (222, [64]). 23 Scherer, Verwaltung und Öffentlichkeit, 1978, p. 13, The Freedom of Information Act, Title 5 USC 552; Gurlit, Akteneinsicht in den vereinigten Staaten, in: Winter (ed.), Öffentlichkeit von Umweltinformationen, 1990, p OVG Münster, Neue Juristische Wochenschrift 1998, 3659; Bieber, Die öffentliche Verwaltung 1991, Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 Vor I; Burmeister / Winter, Akteneinsicht in der Bundesrepublik, in: Winter (ed.), Öffentlichkeit von Umweltinformationen, 1990, p Amtliche Begründung p. 52; Clausen, in: Knack, Verwaltungsverfahrensgesetz, 1998, 29 [2.3]; Hoffmann, Neue Justiz 1991, For more details: Scherer, Verwaltung und Öffentlichkeit, 1978, p

7 (3) The records are made available at the premises of the agency keeping them. In particular cases, the records can be made available at the premises of another agency or those of a diplomatic or consular representation of the Federal Republic of Germany abroad; further exceptions may be granted by the agency keeping the records. Section 30: Secrecy The agency must not disclose any of the participants secrets, in particular those secrets concerning their personal affairs or their trade and business secrets, without being authorized by them in advance. Before I start to explain this regulation in detail, I would like to specify the object of the right to information granted in Section 29 FLAP. Record means every information written on paper in administrative procedures, consequently it does not cover computerized information 29. Access to computerized personal information is regulated in the Federal Privacy Act and the Privacy Acts of the Laender (federal states). The right of access to records is restricted in four aspects that are typical of the German approach to access to information held by the State. Firstly, as regards the personal scope of application: Only the participants of specific proceedings are entitled to inspect the records 30. Secondly, as regards the duration of its availability: Access is solely granted during the course of the proceedings 31. Thirdly, as regards the extent of access: The right of access only covers those records or parts of them that are kept for the same proceedings 32. And, fourthly, records are only made available on the condition that the requesting participant will require the information for the enforcement or the defense of a proper legal interest. A merely legitimate interest is not sufficient 33. If these conditions are fulfilled, the agency concerned must grant access to the records. However, if one of the exceptions of Section 29 Subsection 2 is applicable, access then becomes a question of the agency s discretion. The exceptions describe reasons to withhold records from the parties, but there is no obligation for the agency to do so. In any case, the agency has to weigh the interests of all participants concerned. There are three groups of exceptions: The first one refers to the agency s interests in respect of the proper fulfilment of its functions, the second one refers to the protection of vital national interests or of the vital interests of the Laender and the third one grants privacy in personal and commercial aspects. This enumeration is conclusive. The application of any of the exceptions is open to judicial review Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [9]. 30 KG, Zeitschrift für Wirtschaftsrecht und Insolvenzpraxis 1986, 1614 (1616). 31 OVG Koblenz, Neue Zeitschrift für Verwaltungsrecht 1992, 384; BVerwG, Deutsches Verwaltungsblatt 1984, KG, Zeitschrift für Wirtschaftsrecht und Insolvenzpraxis 1986, 1614 (1616). 33 VG Gießen, Neue Zeitschrift für Verwaltungsrecht 1992, 401; VGH München, Neue Juristische Wochenschrift 1989, Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [51]. 89

8 The right of access to records is derived from the principles of human dignity and the rule of law. According to precedents of the Federal Constitutional Court 35, the principle of human dignity requires that citizens are not objects, but subjects of administrative proceedings 36. Thereby the right of access to records is an expression of fair trial and a special feature of the due process of law. Simultaneously, it enhances the transparency of administrative proceedings. The right to access corresponds with an agency s duty to keep records completely and truthfully 37. Access to records does not include the forwarding of copies, but is limited to the right to read the records and to copy them in writing 38. Further possibilities - as for example the forwarding of records to an attorney or the provision of copies - are at the discretion of agencies 39. Only in the case of copies being forwarded do fees become payable. Section 30 FLAP establishes the participants right to secrecy. The agency must not disclose participants secrets, in particular secrets concerning privacy or industrial, business or trade secrets without authorization. The right to privacy, which has a constitutional foundation, is thus set down in Section 30 FLAP. The provision is also meant to establish and improve a so-called confidential relationship between citizens and the public administration. Notwithstanding its text, Section 30 not only applies to participants secrets, but also to the secrets of third persons, knowledge of which has been gained by the agency during proceedings. The provision is also applicable prior to the opening of the proceedings and after their subsequent closure. As an expression of a constitutionally derived principle, Section 30 FLAP is applicable to all agencies actions 40. Secrets comprise personal data, as well as medical files or industrial or trade and business secrets 41. An authorization of disclosure requires either the concerned person s consent, a specific legal provision or an agency s decision after weighing all interests concerned. As a rule, the constitutional foundation of the right to privacy requires a narrow interpretation of authorization reasons 42. The expediency of administrative co-operation does not justify the disclosure of secrets BVerfGE 9, 89 (95); 27, 1 (6); 28, 386 (391); 50, 166 (175); 72, 105 (116); 87, 209 (228). 36 VGH München, Neue Zeitschrift für Verwaltungsrecht 1990, 775 (777); VGH München, Neue Juristische Wochenschrift 1988, 1615; Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [4]. 37 Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [5]. 38 Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [73]. 39 Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 29 [74, 76]. 40 Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 30 [6]. 41 KG, Zeitschrift für Wirtschaftsrecht und Insolvenzpraxis 1986, 1615 (1616). 42 Papier, NJW 1985, 12; Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 30 [20]. 43 Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 30 [23]. 90

9 Additional rights to access records, that is, access beyond the limits of formal administrative proceedings, are at agency discretion 44. Section 29 FLAP is not applicable. IV. Section 30 Tax Code Freedom of information is even more restricted in German tax law than in the general law on administrative proceedings. A decision as to whether access to documents in fiscal administrative proceedings is granted to a participant in those proceedings is at the discretion of the fiscal agency. The tax code does not include a right of access to these documents equivalent to Section 29 FLAP 45. It only stipulates that the interested party is to be heard before a fiscal decision is made. The German Parliament (Bundestag) stated several reasons for this restriction on the freedom of information. Besides protection of the investigation by the fiscal administration, data protection played an important role 46. This provides us yet another example of the strong position confidentiality enjoys in German law. Especially in the field of taxation, where it is laid down in Section 30 of the German Tax Code, the protection of personal data is seen as an essential guarantee to compensate the taxpayer for his obligation to reveal his financial position 47. Although the confidentiality of fiscal data is not mentioned in the German constitution, it is thought to be protected by Article 1 Subsection 1 and Article 2 Subsection 1 BL 48. The Federal Constitutional Court has interpreted these articles as a right to privacy 49. Thus, personal data is protected against unrestricted collection, storage, use or transmission by public authorities 50. V. European Law Unlike the restrictive German approach to freedom of information, European Union law has strengthened the principle of freedom of information for approximately the last five years, both at European and at national level. This development was stimulated by the fact that several European states had established free access to information. In Sweden, such a right has existed since 1766 and the other Scandinavian countries followed this 44 OVG Münster, Neue Juristische Wochenschrift 1998, 3659 (3660); OVG Koblenz, Neue Zeitschrift für Verwaltungsrecht 1992, 384; OVG Münster, Neue Juristische Wochenschrift 1989, 544; BVerwGE 61, 15 (22); Bonk, in: Stelkens / Bonk / Sachs (eds.), Verwaltungsverfahrensgesetz, 1998, 19 [18]. 45 Dißars, Neue Zeitschrift für Verwaltungsrecht 1997, 481 (481). 46 Bundestags-Drucksache 7/4292, p Tipke, Die Steuerrechtsordnung, 1993, p BVerfGE 65, 1 (45); 67, 100 (142). 49 BVerfGE 27, BVerfGE 65, 1 (45). 91

10 example after the Second World War 51. Other European countries started to introduce similar regulations from the end of the seventies 52. Meanwhile, most European countries guarantee a right of access to information held by the State 53. The starting point of the discussion on freedom of information in the European Union was the declaration accompanying the European Union Treaty 54. The heads of state considered transparency of the decision-making process as an essential component to strengthening the democratic nature of European institutions. Therefore, the Commission was asked to develop a program to grant citizens the right of access to internal documents Internal Codes a. Common Code of Conduct In December 1993, the Council and the Commission created a public right of access to internal documents in a common Code of Conduct 56. In addition to the active information policy of the Union (which implied the use of all technical means in all official languages to distribute information about the European Union) this right was meant to improve transparency, to increase people s interest in Community activities and to ensure more openness in political matters. The Code of Conduct was adopted by the Council in December 1993 by Council Decision 93/731/EC and by the Commission in February The right to information provided by the Code is not limited to groups with particular interests, but granted to any person or corporation. The term "documents" in the Code refers to all kinds of papers in the possession of the Council or the Commission. In addition, computerized information is considered to be a document to which access should be allowed (Art. 1 Subsection 2 Common Code of Conduct). There are several exceptions to the general right of access. Reasons for the rejection of the application are the protection of public and private interests, such as business secrets, as well as financial interests of the Community and the confidentiality of internal proceedings of the Council or the Commission (Art. 4 Common Code of Conduct). Access to internal documents initially requires a written application by the citizen specifying the required document. The application is then examined by the institution and 51 Schwan, Amtsgeheimnis oder Aktenöffentlichkeit?, München 1984, p. 121; Österdal, European Law Review 23 (1998), 336; Petrén, Verwaltungsarchiv 1958, FIDE (Fédération Internationale de Droit Européen) - XVIII Congrès FIDE-Stockholm 3-6 Juin 1998, Vol. III: Le Citoyen, L Administration et le Droit Européen. 53 See Nolte, Die Öffentliche Verwaltung 1999, 363 (364). 54 Bulletin der Bundesregierung, , p O.J. C 156/5, ; O.J. C 166/4, O.J. L 340/43, O.J. L 46/58,

11 is either granted or rejected (Art. 2 Common Code of Conduct). In the case of access being granted, citizens are allowed to inspect the documents at the premises of the Commission or they may ask for a copy of the document, which will be sent to them at their expense (Art. 3 Subsection 1 Common Code of Conduct). In the case of rejection, the citizen is informed and has the right to reapply. If the second application is also rejected, the citizen has the right to either inform the ombudsman (Article 195 EC- Treaty) or to appeal to the European Court of Justice (Article 230 EC-Treaty).(Art. 7 Subsection 3 Common Code of Conduct) In addition to the common Code of Conduct of 1993, the Council later declared the right of access to its minutes in its Code of Conduct of This kind of access was not granted in the Common Code of 1993 due to the confidentiality of the debates 59. b. Jurisdiction One of the reasons for denying access to internal documents according to Art. 4 Subsection 2 of Council Decision 93/731/EC was given as the confidentiality of the proceedings of the Council 60. The decision to deny access under Art. 4 Subsection 2 is at the discretion of the Council. This means that the Council, when exercising its discretion, must balance citizens interests in gaining access to documents genuinely against any interest of the Council itself in maintaining confidentiality concerning its deliberations 61. In Carvel vs. Council a restrictive practice of the Council was judged as an abuse of said discretion and the refusal to grant access was annulled by the Court of First Instance Primary Law a. The Treaty of Amsterdam The right to information is now included in primary European law, in the Treaty of Amsterdam (Article 255). According to Article 255 of the Treaty of Amsterdam, every citizen of the European Union has the right of access to internal documents of the European Parliament, the Commission and the Council. As restrictions of this right, the Treaty mentions public and private interests. The principles and rules for the protection of these interests are fixed by the Council in accordance with the procedure laid down in Article 251. Every institution of the Union is obliged to establish special rules in their standing orders. 58 Published in Revue Europe, Nov. 1995, n See also: Dreher, Europäische Zeitschrift für Wirtschaftsrecht 1996, 487; Lafay, Revue Trimestrielle du Droit Européen, 1997, p O. J. L 340/43, See also: Campbell, International and comparative law quarterly, 1997, Carvel and Guardian newspapers vs. Council , case T-194/94, EuGHE 1995, II

12 b. Access according to Articles 85, 86 EC Treaty A special right of access to information is granted by a Commission Notice of In this notice, the Commission established internal procedural rules for the handling of requests for access to files in cases pursuant to Articles 85 and 86 of the EC Treaty, after several decisions of the Court of First Instance had urged the Commission to do so 64. Access to files is considered to be one of the procedural safeguards designed to ensure effective exercise of the right to be heard. Because of this, the right of access to internal documents is not granted to everyone interested in the matter, but limited to those companies involved in the proceedings of the Commission. Plaintiffs in these proceedings do not have these rights. The addressees of the notice receive access to all documents making up the file of the Commission, apart from the documents concerning business secrets, internal Commission papers and other confidential information, in order to be able to express their views on the conclusions reached by the Commission. The notice distinguishes between noncommunicable documents and communicable documents 65. The companies and the Commission decide which documents they regard as business secrets or confidential files. Confidential - and therefore non-communicable - documents of companies, which serve as a basis for the decision, have to be delivered in a reasonably coherent non-confidential version. In addition to these rights, it can be considered Union policy to inform its citizens actively by publishing all kinds of documents using every kind of media (including the Internet) 66. To ensure access to the information published by the Union, several technical norms are to be harmonized and general rules about copyrights and related rights will have to be developed. 3. Secondary Law and its impact on national (esp. German) law: The Federal Law on Information about the Environment The generous information policy of the European Union not only influences primary law and internal codes; it has also had initial effects on secondary European law, as can be seen in Council Directive 313/90/EEC of June 7 th, The transformation of this directive into national law may lead to a new information policy taking possession of German law, which might have an impact on the restrictive German approach to freedom of information. 63 O.J. C 23/3, Cases: Solvay vs. Commission, EuGHE 1995, II-1775; 1995, II-1847; 1995, II O.J. C 23/3, See Preston, Openness and the European Union Institutions, Conference of Stockholm 27/ ; notice of the Commission transparency in the Community, O.J. C 166/4, ; decision of the Council to publish statistical material, O.J. L 52/1, O.J. L 158/56,

13 In order to implement Council Directive 313/90/EEC of June 7, 1990, on the freedom of access to information on the environment 68 the Federal Law on Information about the Environment (FLIE) came into force on July 16, FLIE might be characterized as a sectoral change in the German regulation of access to information, which is completely determined by European law 70. These regulations replace the principle of official secrecy which, traditionally, is a fundamental principle of German administrative law, by the principle of publicity whenever the European aim of environmental protection is concerned. Publicity is guaranteed by introducing a right of access to information to any person named in Section 4 Subsection 1 FLIE. According to the first sentence of Section 4 Subsection 1 FLIE, public authorities are obliged to make information relating to the environment available to any person or corporation at his or her request without his or her having to prove an interest. According to Section 1 FLIE, the main object of the law is to ensure freedom of access to and dissemination of information on the environment held by public authorities. It also seeks to set out the basic terms and conditions under which such information should be made available 71. The background of this aim is the recognition of the necessity to diminish the deficits of execution in environmental law by introducing a concept of expanded publicity 72. With regard to the deficient instruments of parliamentary and judicial control in questions of environmental law, the right of free access to information on the environment can be considered as an administrative control instrument. The public becomes the guardian of environmental law 73. The main aim of providing access to information can be characterized as a decentralized and more effective control of administrative duties by means of the general public 74. Public authorities that are required to make information available all count as administrative agencies 75. Access must be granted by agencies at national, regional or local 76 level 77 with responsibilities and possessing information relating to the environment 78 with the exception of bodies acting in judicial 79 or legislative 80 capacity and with the exception of the highest agencies of the Federal State and the Laender OJ L 158/56, ; Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (733). 69 Meyer-Rutz, Das neue Umweltinformationsgesetz, Hatje, Europarecht 1998, 734 (736); Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 1 [18]; Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (326). 71 Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 1 [1]. 72 Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 1 [16 et]. 73 Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (734). 74 Hatje, Europarecht 1998, 734 (736); Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 1 [16,17]. 75 Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (327). 76 Faber, Deutsches Verwaltungsblatt 1995, 722 (723). 77 Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 2 [3] Subsection 1 FLIE; see: Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 3 [10] Subsection 1 No. 3 FLIE; see: Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, 95

14 In order to avoid the danger of bypassing the right to free access by delegating public duties to private responsibility 82, FLIE also binds private bodies that take over public responsibilities for the environment and which are under the control of administrative agencies 83. The right of free access to information about the environment is divided into three categories 84 : Data about the state of environmental sectors 85, data about activities or measures which cause or may cause a deterioration of this state (e.g. emissions) 86, and data about activities or measures, which serve the protection of the environment 87. The right of free access to information extends only to information which is already in possession of the previously cited public authorities. Agencies are not required to solicit inquiries for further information 88. The method of granting access remains at the discretion of the agency 89. The right of free access to information is restricted in many ways 90. Several restrictions are based on the protection of public interests. A request must be refused where it affects the confidentiality of public authority proceedings, international relations and national defense 91, public security 92, as well as matters which are, or have been, sub judice, or under inquiry, or which are the subject of preliminary investigative proceedings 93 or material supplied by a third party without that party being under a legal obligation to do so Kommentar, 1995, 3 [34] Subsection 1 No. 1 FLIE; see: Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 3 [19] Subsection 1 No. 1 FLIE; see: Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 3 [21]. 82 Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (735); Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (328). 83 Faber, Deutsches Verwaltungsblatt 1995, 722 (725). 84 Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (328) Subsection 2 No. 1 FLIE; see Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (329); Schomerus, in: Schomerus / Schrader / Wegener (eds.), 1995, 3 Rd Subsection 2 No. 2 FLIE; Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (329); Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 3 [89] Subsection 2 No. 3 FLIE; Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (330); Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 3 [98]. 88 Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, 1995, Kommentar, 1995, 4 [12]. 89 BVerwGE 102, 282; Röger, Deutsches Verwaltungsblatt 1997, 885; Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (736); Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (332); Wegener, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 4 [16]. 90 Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (330). 91 Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (738); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [7-9] Subsection 1 No. 1 FLIE "a weighty danger for public security": Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (738); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [11] Subseciton 1 No. 2. FLIE, see: EuGH, Neue Zeitschrift für Verwaltungsrecht 1998, 945; Müller / Heuer, Neue Zeitschrift für Verwaltungsrecht 1997, 330 (332); Scherzberg, Deutsches

15 A request must also be refused if it involves unfinished documents, data or internal communications, 95 or if the request is improper 96. In addition, a request must be refused if the access to information is involved with danger for environmental goods or for the fulfilment of the aim of protecting the environment 97. Other restrictions serve the protection of private interests. A request is to be refused, where it affects the confidentiality of personal data or files 98 or if it violates the right to privacy 99. A request must also be refused if it violates commercial and industrial confidentiality 100 or intellectual property 101 or if it infringes the confidentiality of fiscal or statistical data. To obtain the information, interested persons must formulate a precise 102 and reasonable request 103. The agency is required to make a decision regarding the request within two months 104. It may charge for supplying the information, but such charges may not be unreasonable 105. Verwaltungsblatt 1994, 733 (738); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [12-18]; Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (330) Subsection 4 FLIE, comp.: Fluck, Neue Zeitschrift für Verwaltungsrecht 1994, 1048 (1049); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [35] Subsection 2 FLIE; Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [25] Subsection 3 FLIE; Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [30] Subsection 1 No. 3 FLIE; Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 7 [19-24]; compare: CD 90/313/ EEC, Art. 3 Subsection 2 7th sec.:" material, the disclosure of which would make it more likely that the environment to which such material related would be damaged." 98 8 Subsection 1 No. 1 FLIE. For further information comp.: Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 8 [4]. 99 Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (740); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 8 [7]; Theuer, Neue Zeitschrift für Verwaltungsrecht 1996, 326 (331) Subsection 1 S. 2 FLIE. For details comp.: Fluck, Neue Zeitschrift für Verwaltungsrecht 1994, 1048 (1052); Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (741); Schomerus, Zeitschrift für Umweltrecht 1994, 226 (228); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 8 [19] Subsection 1 No. 2 FLIE Fluck, Neue Zeitschrift für Verwaltungsrecht 1994, 1048 (1050); Müller / Heuer, Neue Zeitschrift für Verwaltungsrecht 1997, 330 (333); Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (741); Schrader, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 8 [13]. 102 Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 5 [10] Subsection 1 FLIE Schomerus, Zeitschrift für Umweltrecht 1994, 226 (226) Subsection 2 FLIE. 105 To the question of the conformity of 10 FLIE with Article 5 CD 90/313/EEC: "Member States may make a charge for supplying the information, but such charge may not exceed a reasonable cost."; compare Faber, Deutsches Verwaltungsblatt 1995, 722 (728); Scherzberg, Deutsches Verwaltungsblatt 1994, 733 (744); Schomerus, in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, 10 [1-32, 55]; Schrader, Zeitschrift für Umweltrecht 1994,

16 C. Different approaches concerning access to information held by the State I. German Tradition: The Denial of Access Although both, the U.S. and Germany acknowledge the importance of freedom of communication for a democratic system, they have a different approach to freedom of information. As the analysis of the German legal rules has shown, access to administrative records does not aim at democratic control through publicity. German law does not guarantee an unlimited access to agency records; it generally reduces access to agency files by imposing the following conditions: administrative proceedings - participant - qualified interest in the information. Thus, official secrecy is the rule and access to information held by the State becomes the exception 106. The strictly limited access to files is not only a consequence of the constitutional demands on data protection. It is rather proof of a completely different understanding of administration itself. The dominance of official secrecy has its roots in absolutism and bureaucracy. Absolutism accepts the governor as a father-figure in the role of a guardian 107. This implies the right to keep information to himself. Official secrecy has also become a fundamental element of bureaucracy. Speaking in the terms of Max Weber, bureaucracy tends to increase its power by excluding the public and by keeping its knowledge secret 108. Thus, the historical background of the German administrative system explains the continued limited access to agency files. The law does not accept a general interest in access to documents; it only grants insight into documents if a person can prove a specific interest in the information contained therein. So far, legal interests in particular are held to be such specific interests. The above limitations to the right to information illustrate that the German concept of access to information held by the State is that of enabling a person to defend his or her rights in administrative or legal proceedings 109. Thus, the interest of an individual to information is reduced to that of legal defense only 110. In German law, access to information does not serve the purpose of democratic control. The right to information only meets the demands of the constitutional guarantees to be heard in legal proceedings (rechtliches Gehör) and to be treated fairly in administrative 106 Scherer, Juristenzeitung 1979, 389 (389); Bleyl, Datenschutz und Datensicherung 1998, 32 (32). 107 Gurlit, Die Verwaltungsöffentlichkeit im Umweltrecht, 1989, p Weber, Wirtschaft und Gesellschaft, 1990, p Gurlit, Die Verwaltungsöffentlichkeit im Umweltrecht, 1989, p. 214; Scherer, Verwaltung und Öffentlichkeit, 1978, p. 20; Schröder, Die Verwaltung 4 (1971), 301 (316); Fehling / Schneider, in: Bernhardt / Beyerlin (eds.), Reports on German Public Law, 1990, p. 167 (172); Kahl, in: Haratsch / Kugelmann / Repkewitz (eds.), Herausforderungen an das Recht der Informationsgesellschaft, 1996, p. 9 (16); Bieber, Die Öffentliche Verwaltung 1991, 857 (857, 859); Bleyl, Datenschutz und Datensicherung 1998, 32 (32); Hatje, Europarecht 1998, 734 (737). 110 Gurlit, Die Verwaltungsöffentlichkeit im Umweltrecht, 1989, p

17 proceedings 111. The democratic aspect, the control of executive, is seen as an exclusive task of the legislature (general inspections) and the judiciary (investigation into specific cases) 112. Publicity as a means of democratic control plays an important role in the inspection of the legislature and judiciary, but not of the executive. The question is, whether the legislature and judiciary can guarantee an effective control of the administrative system on their own. In view of the specialisation and complexity of administrative decisions this seems rather doubtful 113. Given these doubts there is a strong tendency to establish publicity as a second means of controlling the executive 114. The understanding of democratic control seems to undergo a fundamental change. This process has already led to a new generation of legal regulations concerning access to information. The constitution of the state of Brandenburg might prepare/pave the way for this new understanding and can be called the trendsetter for this development. Its Article 21 Subsection 4 contains a generally unlimited right to access to information held by the state 115. II. The European Approach: Access to Information as an Implementation Tool of the Law In general, the European Union follows a more generous approach concerning access to information. It presents itself as a transparent institution, open to public inspection. Article 255 EC Treaty gives evidence of this policy. It grants access to documents of the European Parliament, the Council and the Commission. Besides this general policy, access to information is also used as an instrument to improve the implementation of EC law. The prominent example for this strategy is Council Directive 90/313/EEC of June 1990 on the freedom of information on the environment 116. This directive attempts to compensate the Commission for its lack of executive competence that results form the fact that the Commission does not have subordinate agencies, which could supervise the implementation of European environmental law. Thus, in the field of environmental law, implementation falls under the responsibility of the member states and their executive. Although member states are obliged to take all necessary precautions to achieve the targets named in the EC Treaty (Article 10 EC- 111 Reinhardt, Die Verwaltung 30 (1997), 161 (166). 112 Erichsen, Neue Zeitschrift für Verwaltungsrecht 1992, 409 (418). 113 Erichsen, Neue Zeitschrift für Verwaltungsrecht 1992, 409 (418). 114 Not one of the authors mentioned above favours the traditional system of official secrecy. Limits to publicity are only demanded on account of the right to privacy. 115 Anyone has the right to inspect files and other official documents of the authorities and the administration of the State and the communities according to the law, as long as there are no predominant public or private interests. 116 O.J. L 158/56,

18 Treaty), European environmental policy is often especially neglected. The EC Treaty does not provide the Commission with efficient instruments to control the implementation of EC environmental law. The Commission is limited to its powers to initiate an action against a member state for failure to fulfil EC obligations before the European Court of Justice (Article 226 EC-Treaty) and to request information (Article 284 EC-Treaty). These instruments are fairly complex and need a lot of time. This leads to a lack of implementation which is meant to be compensated by the installation of an indirect control by EU citizens 117. By granting them access to information, the directive instrumentalises EU citizens to establish an indirect influence on the implementation of the environmental law 118. The directive is seen as the key to a more intensive control of the administration by the public. The citizens are supposed to act as guardians of the correct implementation of national and European environmental law 119. So far, EC Directive 90/313/EC on the freedom of information about the environment is the only example of an indirect control of the implementation of EC law in support of the Commission. From my point of view, this strategy resembles two instruments that were created by the European Court of Justice to increase the efficiency of the implementation of EC law: The direct application of EC directives and the right to damages for the failure of member States to implement EC directives properly and in time. D. Intellectual Property To understand the German concept of freedom of information in relation to private persons one also has to take into account intellectual property. At first sight, the development of German copyright law seems to be contradictory to freedom of information. But, by taking a closer look at the matter, it becomes obvious that the high level of protection afforded to intellectual property and that is to be maintained, is also meant to ensure the development of an information society by creating a legal framework on copyright that increases the legal certainty for authors as well as for consumers 120. The fact that the right of making intellectual property available to the information society is still and will remain a monopoly of the authors, is due to the origins of copyright law and the concept of intellectual property. The concept of intellectual property in Germany was influenced by the theories of natural law 121. The theory of intellectual property gives the author an original and exclusive right to his work which has been placed under the protection of property right in general In great detail: Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts, 1997, p. 21; Demmke in: Hegele / Röger (eds.), Umweltschutz durch Umweltinformation, 1993, p. 34, 40; Wegener in: Schomerus / Schrader / Wegener (eds.), UIG, Kommentar, 1995, p Reinhardt, Die Verwaltung 30 (1997), 161 (164). 119 Hatje, Europarecht 1998, 734 (735). 120 Stögmüller, Gewerblicher Rechtsschutz und Urheberrecht International 1995, S. 855; COM (97), 628 final, O.J. C 108/6, Stögmüller, Gewerblicher Rechtsschutz und Urheberrecht International 1995, S. 855; COM (97), 100

19 The protection of intellectual property is regulated by the German copyright law (UrhG). German copyright law tries to counterbalance the interests of authors with those of consumers, who are to achieve full access to the authors works as part of their cultural identity. On the other hand, the interests of the authors lie in determinining who acquires access to their works and - in order to make their livelihood - in receiving an appropriate remuneration for the use of their works. Making authors works available by state intervention would thus be as inadmissible 123 as forcing them to tolerate the distribution of their works without adequate remuneration 124. The legislative aims of the copyright law are challenged by the development of the information society with its rapidly evolving information technology. Accordingly, the world today is at the threshold of the era of digital culture that will ultimately replace the culture of printing 125. As far as copyright law is concerned, some of the innovative aspects of this information technology are the ability to accurately access any part of a work without the need to buy it, to provide interactive communication and to reproduce it without loss of quality. The capabilities of the information technology correspond to the fundamental needs of the information society which is granted maximum use of the information on offer. But the innovative aspects of these technologies simultaneously endanger the authors interests. Intellectual property, as a property right, is obliged to consider social welfare aspects. To a certain extent, authors who deal with their intellectual property, must take the interests of the community into their considerations. Since protection is crucial to intellectual creation 126, one notices on the one hand a contradiction between granting a high level of protection to the intellectual property on the one hand, and the negative affects such protection will have on access to the information as a common good on the other hand. As the territorial principle is prevalent in international copyright law 127, the German government is aware of the danger of overregulation possibly leading to an exit of providers and global competitive disadvantages 128. Nevertheless, German law does not decrease the protection of the intellectual property achieved, but maintains the status quo 129. It finds a social welfare loss due to underutilization of information more acceptable than to accede to a social welfare loss due to underproduction 130. In order to 628 final, O.J. C 108/6, Fechner, Geistiges Eigentum und Verfassung, 1999, S Rehbinder, Urheberrecht, 1998, p Rehbinder, Urheberrecht, 1998, p Bundestags-Drucksache 13/8110, p COM (97) 628 final; O.J. C 108/7, Rehbinder, Urheberrecht, 1998, p Bundestags-Drucksache 13/8110, p Bundestags-Drucksache 13/8110, p Bundestags-Drucksache 13/8110, p

20 transfer this high level of protection to digital innovations, the discussion in Germany circles around leaving the process of discovering and solving conflicts that may arise from the digital revolution either to the courts or to the legislator 131. Furthermore, important voices in politics and literature have come to the conclusion that the existing copyright legislation will be able to adapt to the new challenges. To some extent, the German discussion is influenced by EC initiatives concerning copyright law and intellectual property. On the whole, the EC s ideas concerning intellectual property coincide with the German concept. The EC has adopted several directives in order to harmonize certain aspects of copyright and related rights, e.g. Council Directive 91/250/EEC of May 14, on the legal protection of computer programs, Council Directive 93/98/EEC of October 29, on harmonizing the terms of protection of copyright and related rights and Council Directive 96/9/EC of March 11, on the legal protection of databases. But these directives only apply to particular aspects of the intellectual property and copyright. After having published two greenbooks in and in , embracing the information society and its impact on copyright and related rights as a whole, the Commission has finally made a proposal for a European Parliament and Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society 137 in 1998, which includes - in opposition to its title - a comprising concept of copyright 138. The Commission emphasizes the defense of the authors rights against abusive on-line use of their works. It proposes harmonization in the following fields 139. First it deals with the right of reproduction (Article 2). The exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part shall be granted to the authors. It also refers to the right of communication to the public, including the right of making works or other subject matters available (Article 3). These rights shall also be granted exclusively to the authors. The right of distributing the work (Article 4) in any form is also granted to the authors. This right will only be exhausted with the first transfer of ownership of the object that is made by the rightholder or with his consent and takes place within the Member States of the EC. 131 Bundestags-Drucksache 13/8110, p O.J. L 122/42, O.J. L 290/9, O.J. L 77/20, COM (95) 382 final. 136 COM (96) 568 final. 137 COM (97) 628 final; O.J. C 108/6, Dietz, Zeitschrift für Urheber- und Medienrecht 1998, See hereto Reinbothe, Zeitschrift für Urheber- und Medienrecht 1998, 429; Flechsig, Zeitschrift für Urheber- und Medienrecht 1998,

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