Swedish Supreme Court favours copyright protection over freedom of information and of the press

Earlier this week, the Swedish Supreme Court issued its decision in an interesting copyright case: T 4412-19 (commonly referred to as the “metal pole case”). In a nutshell, the case concerned the relationship between, on the one hand, copyright and related rights in a film and, on the other hand, the public interest in accessing information (freedom of information).

In this sense, it offered a further opportunity to reflect on the interplay between copyright protection and freedom of expression/information and freedom of the press, this being an area recently covered also by the Court of Justice of the European Union (CJEU) in its decisions in Funke Medien, C-469/17 [Katpost here], Pelham, C-476/17 [Katposts here and here], Spiegel Online, C-516/17 [Katpost here].

Background

In June 2010, Kent Ekeroth (KE), a controversial politician running for Parliament at the Swedish general elections, was involved in a brawl in central Stockholm. He filmed the incident with his cellphone and a video was subsequently uploaded on YouTube with his approval.

A newspaper discovered the video and published a longer version of it on its website. Such longer version included sequences that had not originally been made available on YouTube. Furthermore, based on the sequences, the newspaper also published still images and film snippets, used in various news articles and news programs, for several years. This was done without KE’s approval.

KE claimed compensation from the newspaper for the unauthorized publications. The newspaper counterargued that it had the right to use the contents as it had done, that is without the approval of KE. In consideration of his political commitment, the public had a strong interest in obtaining information concerning the recorded event.

The Supreme Court’s findings

The Swedish Supreme Court reiterated the CJEU findings in the cases mentioned above.

Among other things, it noted that Directive 2001/29/EC (the InfoSoc Directive) must be transposed into national law in such a way that a fair balance between the authors’ rights and third-party rights and interest is achieved.

In this regard, Articles 23 and 25 of the Swedish Copyright Act (SCA) set out that works which have been made public may be reproduced in a newspaper in connection with a report on a current news event. Works which are seen or heard in the course of an event may be used in connection with information concerning the event through sound radio, television, direct transmission or film. The works may, however, be used only to the extent justified by the purpose of information.

The latter provisions were left unaffected when Sweden transposed the InfoSoc Directive into its own law.

By taking into account the InfoSoc Directive, Swedish legislature concluded that the requirements “have been made public” in Article 23 and “works which are seen or heard in the course of an event” in Article 25 SCA must be fulfilled for the limitations to apply. In this sense, the legislature did not envisage a more general limitation on copyright for the purposes of news reporting where courts would be given further discretion to assess whether a certain actions can be considered justified for the purpose of freedom of information.

Consequently, the newspaper’s argument failed: the longer version had not been made public prior to publishing the longer version of the video.

Other legislation may, depending on the circumstances, pose limits to the rightsholder’s exclusive rights as granted under the SCA. Examples of this are usually mentioned under legislation relating to competition law and/or criminal law.

Taking criminal law as an example, in light of freedom of expression and information, criminal liability for copyright infringement may be limited in certain cases. For example, the Swedish Supreme Court held (NJA 1985 s. 893) that, while if it typically falls on the legislature to limit the penalty for copyright infringement in favour of an opposing interest concerning freedom of expression/information, situations may still arise where such interest is so relevant that the courts must take responsibility for freeing the defendant despite prosecution for copyright infringement. According to the Supreme Court in that judgment, this could mean that the unauthorized publication of copyright-protected works does not also result in liability from a criminal perspective, but merely entitles the author to compensation.

The European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights

Copyright’s exclusive rights can also be limited in light of the ECHR. According to Article 10 ECHR, all subjects are granted the right to freedom of expression. However, the exercise of that freedom may be subject to restrictions or penalties as are prescribed by law and are necessary in a democratic society, with regard to (among other things) the rights of others.

As a matter of principle, it is important to recall that the ECHR regulates a state's obligations to individuals and does not have a direct effect on the civil liability in proceedings between individuals.

When it comes to criminal liability for copyright infringement, the European Court of Human Rights (ECtHR) considered in Ashby Donald and Others v. France [Katpost here] that freedom of expression and freedom of information, as set forth in Article 10 ECHR, can establish limits on how far copyright extends in the individual case. To determine the latter, the ECtHR engages in a proportionality assessment which entails assessing the scope of copyright protection and the public’s interest in obtaining access the work in question for the purposes of freedom of expression and information.

However, when it comes to civil liability and damages, special attention must be directed to the fact that the individual author should not be deprived of the right for which he or she is entitled to by law. In this sense, the Swedish Supreme Court held that the conclusion could not be that Article 10 ECHR deprives the rightsholder of his or her right to compensation. The interest in maintaining the balance between copyright and freedom of information is of particular importance, as opposed to, for example, situations that entail the question of whether criminal liability should be established in a particular case.

The conclusion is therefore that Article 10 ECHR cannot have the effect of depriving a copyright owner of his or her right to compensation. The same is true of Article 11 in the Charter of Fundamental Rights of The European Union.