Swedish Supreme Court uses three-step test to interpret restrictively freedom of panorama

The Swedish Supreme Court
(photo courtesy of ... Wikipedia)
Earlier this week the Högsta domstolen (Swedish Supreme Court) issued a ruling that has apparently raised a good deal of attention and possibly more than an eyebrow [hereherehere], in that this court appears to have adopted a restrictive interpretation Article 24(1) of the Swedish Copyright Act

What is this provision all about? Well, it concerns something that is being perceived as a fairly hot topic also at the EU level [here for the EU Commission's Public Consultation launched last week]: the (in)famous freedom of panorama.

As readers will remember, Article 5(3)(h) of the InfoSoc Directive allows Member States to adopt a national exception/limitation to the rights harmonised by that directive to permit the "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

Sweden decided to take advantage of this possibility under EU law, and Article 24(1) of the Swedish Copyright Act provides that:

"Works of fine art may be reproduced in pictorial form 
1. if they are permanently located outdoors on, or at, a public place 
2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale or 
3. if they form part of a collection, in catalogues, however not in digital form."

The Supreme Court ruled that this provision does not go as far as granting an online publicly accessible database, ie Wikipedia [here for Wikimedia's reaction to the judgment], the right to make photographs of artworks located permanently outdoors or in public spaces available to the public. Whether the objective pursued is commercial or not [the latter is the case of Wikipedia, which aims to provide an open database of public art in Sweden that can be used, among other things, in the education and tourism sectors] is irrelevant.

Thanks to Google Translate, below is how the Court reasoned to achieve its conclusion.

Possibly infringing picture

Swedish collecting society Bildupphovsrätt sued Wikimedia before the Stockholm District Court, claiming copyright infringement in three works of visual art [three sculptures, to be more specific] (in relation to which it administers the relevant rights) for disseminating [hence not just reproducing] images of such works through Wikipedia.

Wikimedia invoked the defence in Article 24(1) of the Copyright Act, arguing that this provision would encompass not just the making of copies or artworks, but also their transfer. This interpretation would descend from an obligation not to interpret relevant exceptions and limitations more narrowly than what the InfoSoc Directive allows [this is an interesting point and I argued in a similar sense in this article].

The District Court decided to refer the case to the Supreme Court asking to clarify the notion of 'image' in Article 24(1).

The judgment

Following a review of the rights granted by copyright and relevant exceptions/limitations, the Supreme Court clarified that the provisions in the Swedish Copyright Act should be read in light of the InfoSoc Directive [this was implemented into the Swedish legal system with some delay, ie in 2005]. The Directive mandates a broad protection of copyright - "especially in the digital environment" - but also seeks to balance the rights of authors with the public interest in accessing and using works.

Turning to the consideration of the system of exceptions and limitations in Article 5 of the InfoSoc Directive, the Supreme Court recalled how this contains an exhaustive list of optional [with the exclusion of the temporary copies exception in Article 5(1)] exceptions that Member States may adopt into their own legal systems. 

Three steps
The three-step test is to be applied directly by courts

The Court also recalled that the three-step test in Article 5(5) mandates that exceptions and limitations are applied (1) 
in certain special cases, (2) which do not conflict with a normal exploitation of the work or other subject-matter and (3) do not unreasonably prejudice the legitimate interests of the rightholder.

And here's another interesting thing about this judgment: the Supreme Court applied directly the three-step test to interpret the scope of Article 24(1) of the Swedish Copyright Act [as readers may know, it has been debated for a while whether the three-step test in Article 5(5) is only addressed at national legislatures, or also courts when interpreting relevant exceptions and limitations. In this recent article Mr Justice Arnold and I have argued in the sense that the three-step test in the InfoSoc Directive is addressed at national legislatures and courts alike. This also descends from the interpretation of a number of recent decisions of the Court of Justice of the European Union. The Swedish Supreme Court appeared to agree with this interpretation].

The Supreme Court considered the individual steps in the three-step test, and held that:
  • 'certain special cases' means that the exception at hand must be clearly defined and precise in scope;
  • as regards the 'normal exploitation' of the work, this should take into consideration not only current uses of a work, but also the uses that could become possible thanks to technological advancement;
  • as to the notion of 'legitimate interests', these should be assessed in light of whether a restriction in copyright exclusive rights would be justified to safeguard a stronger general interest. As such, it is a proportionality assessment.
Image + cat + unreasonable prejudice
Freedom of panorama: what is an 'image'?

Following these remarks, the Supreme Court considered the rationale and wording of Article 24(1) of the Swedish Copyright Act.

As regards the rationale, it held that this provision is rooted within the public interest to reproduce freely outdoors or public spaces. 

Turning to the language of Article 24(1), the term 'image' means that the artwork at issue may be reproduced by painting, drawing, photograph or other two-dimensional technique [in this sense the Swedish freedom of panorama would be narrower than what is allowed by Article 5(3)(h) of the InfoSoc Directive]. The exception would also apply if the artwork at hand was the main subject of such reproduction (eg postcard). Unlike other Nordic countries, Swedish legislature decided not to distinguish between commercial and non-commercial uses of this type of images.

In light of the above, the Supreme Court held that Article 24(1) and the notion of 'image' therein should be interpreted in light of the three-step test in Article 5(5) of the InfoSoc Directive. It noted how analogue dissemination of images of artworks might not be particularly prejudicial to relevant rightholders. However, things are different when it comes to online dissemination by means of a publicly accessible database. 

According to the Court, the making available of images of artworks through publicly accessible online databases would unreasonably prejudice the rightholders' legitimate interests, in that it would deprive them of potential commercial revenue arising from the exploitation of such dissemination channels. To this end, the public interest underlying the non-profit and open nature of Wikimedia's database would not offset the prejudice caused to rightholders.

Don't like what you see?
Yet, it's EU copyright

This decision is disappointing from the perspective of making content available online for everybody to find and access, and may be worrisome from a broader - policy - perspective [the current discussion in France regarding the legislative proposal on online image search comes immediately to mind].

However, from strictly a legal standpoint, the conclusion of the Swedish Supreme Court appears correct. As Mr Justice Arnold and I wrote in our piece:

"From a practical standpoint, direct applicability of the three-step test by national courts would require them to undertake a possibly more thorough scrutiny as regards the actual availability of national exceptions and limitations for the acts at issue. Not only would courts have to examine the potential eligibility of the acts at issue for protection under appropriate national exceptions, but in order to determine the actual applicability of the latter they would also need to determine that such acts meet the three conditions of the three-step test. In some instances this might result in the further restriction of available national exceptions and limitations."

The question then becomes whether the current law on copyright is fair and makes sense. But this is a different story altogether ... or is it not?
Swedish Supreme Court uses three-step test to interpret restrictively freedom of panorama Swedish Supreme Court uses three-step test to interpret restrictively freedom of panorama Reviewed by Eleonora Rosati on Wednesday, April 06, 2016 Rating: 5


  1. Eleonora

    I have always maintained that the art 5(5) 3 step test is directory to the state (hence the name - directive) and the more so since article 5(5)says that it refers to art 5(1)-(4), which are clearly directory. To be sure where there are difficulties in construction then Marleasing may be applied and art 5(5) my be used in aid but to use art 5(5) as a means of enabling the court to re-apply the directive is a step too far. The effect of that would be to give directives a direct effect - lamentably (and on one view - there are many) this is what happened in Vidal-Hall and, apparently, a line of authority to precede it, though it could be that "statutory correction" is limited to the clearest of cases and Vidal-Hall exposed a clear error in transposing the Data Protection Directive. We know that directives cannot be directly effective because the TFEU says so (check out art 288 TFEU - "... binding, as to the result to be achieved, upon each Member State ...").

    I made this point in AIPPI's recent submission concerning libraries and archives, which I think was well received, though it could be that people are being nice and in fact they loathed it.

    Not sure if this qualifies your points (all well made) - I hope not.


  2. You may have had a slip of keyboard in the second to last red comment. Only Section 24(3) of Swedish copyright act mentions the "not in a digital form" restriction; the law does not have it for 24(1) at issue. The argument is somewhat relevant, however, because the non-digital restriction of 24(3) prevents arguing that Wikimedia provides a catalogue qualifying under 24(3).

  3. “However, from strictly a legal standpoint, the conclusion of the Swedish Supreme Court appears correct.” With all due respect, I disagree!
    The community of Stockholm bought one of the sculptures at stake and put it on a lovely spot in Stockholm. Why should not people all over the world get a chance to look at it?
    Section 24 in the Swedish Copyright Law says:
    “Works of art may be reproduced in pictorial form:
    1. if they are permanently situated on or at a public outdoor location;
    2. if the purpose is to advertise an exhibition or a sale of works of art but only to the extent necessary for the promotion of the exhibition or the sale; or
    3. if they are part of a collection or catalogues, provided that they are not in digital form.
    Buildings may be freely reproduced in pictorial form. (SFS 1005:539).”
    Christophe Geiger, Daniel J. Gervais and Martin Senftleben, “Understanding the ‘three-step test’”, in International Intellectual Property, A Handbook of Contemporary Research, ed Daniel J. Gervais, Edward Elgar Publishing Limited, 2015, make this comments on the three-step test:
    1. “That step is the prohibition of a conflict with a ‘normal exploitation’ of the work.” … to involve consideration of the forms of exploitation that currently generate income for the right holder as well as those which, in all probability, are likely to be of considerable importance in the future” (my marks.) . This cannot be the case for the sculptor!
    2. That step is the prohibition of a conflict with a ‘normal exploitation’ of the work”. Of course, the normal exploitation of a sculpture is to sell the sculpture!
    3. This language indicates that the right holder is not intended to have the power to control all uses of her works… The formulation … allows WTO Members to use a proportionality test” How about this test?
    As Geiger et al pointing out: “Confirming the test’s role in creating room for social, cultural and economic interests that have to be balanced against the rationales of copyright protection, the test has been used in this enabling sense in a number of court decisions.”
    And Annette Kur, in Intellectual Property Rights In A Fair World Trade System, Edward Elgar Publishing Limited, 2011, p. 248 says: “The need to interpret the three- step test in the light of proportionality considerations cannot be emphasised strongly enough”.
    In my mind, the social and cultural values that Wikipedia conveys for free through out the world, showing this lovely sculpture in Stockholm, carries more weight than anything else.
    I think the Swedish Supreme Court got it wrong!

  4. Isn't the spoilsport in this instance the Swedish collecting society ? Surely the creator of the work(s) is usually going to be a happy bunny when learning of the publicity (and imprimature ?) of dissemination on Wikimedia ? If you don't want people sharing photos of your original work(s) - DON'T PUT THEM (OR AGREE TO PUT THEM) IN PUBLIC PLACES !

  5. The Austrian Supreme Court directly applied the Three-Steps-Test on basis of the Berne Convention already in 1995.


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