With copyright against open data: Bavaria loses to open data activists

The Bavarian government has lost a legal battle against open-data activist Markus Drenger, marking a partial victory for digital transparency advocates. The case, which has spanned several years, centers on whether publicly funded geospatial data should be freely accessible or subject to proprietary restrictions. The Oberlandesgericht München (OLG) ruled in favor of Drenger, dismissing the state’s lawsuit over procedural errors, though key questions remain unresolved regarding the boundaries of public data access. The dispute originated in early 2021 when Drenger discovered geospatial data published by the Federal Aviation Authority (Bundesamt für Flugsicherung). These datasets identify protected zones around critical infrastructure such as radar and navigation systems, where strict building regulations apply. The coordinates were originally sourced from the Central Office for House Coordinates and Surroundings (ZSHH), a unit under the Bavarian State Office for Digitisation, Broadband, and Surveying (LDBV). Drenger downloaded the data and shared it on GitHub, enabling other users to integrate it with additional information sources. This action prompted the LDBV to accuse him of violating data protection laws, specifically the database right under German law. In response to the accusation, Drenger removed the data from the platform, but the Bavarian authorities did not relent. Following a formal warning, the state filed both a criminal complaint and a civil lawsuit, arguing that as the creator of the dataset, it had a legitimate claim to protect its investment. The state claimed that maintaining these databases required substantial resources and that licensing fees were necessary to recoup costs, not just for commercial entities, but also for other governmental bodies. Transparency initiatives such as Wikimedia Germany have long criticized this model as financially burdensome and counterproductive to open data principles. The legal proceedings took a decisive turn in late July when the OLG dismissed the state’s lawsuit as inadmissible. The court cited procedural violations, including the state’s inconsistent claims during different stages of the trial. Initially, the state asserted sole authorship of the dataset, but later claimed joint management with Deutsche Post Direkt GmbH. Such changes in legal arguments are not permitted under procedural law. Additionally, the court referenced the Data Use Act, which implements EU open-data directives, asserting that geospatial data held by public authorities must generally be made available to the public. Despite the ruling, Drenger expressed disappointment to Netzpolitik.org, noting that the case ended due to procedural grounds rather than a resolution of core issues. He warned that the outcome does not clarify whether public agencies can bypass open-data mandates through partnerships with private firms or by selling data. If non-profits and volunteers face legal threats even when using openly available government data, he fears that the willingness to engage in civic data work could diminish significantly. The case highlights ongoing tensions between data sovereignty and open-access policies, particularly in jurisdictions where public funding supports data collection but private interests seek control over its usage. As the debate continues, the implications for digital transparency and citizen participation in governance remain uncertain.