[Guest post] Danish court tackles balance between copyright and freedom of speech and religion

The interplay (and clash) between copyright protection and other fundamental rights and freedoms has become increasingly frequent and relevant over the past few years. The IPKat is pleased to host the following guest post by Jakob Plesner Mathiasen (IFPI Denmark and Ples&Lindholm) on a recent and very interesting Danish decision.

Over to Jakob:

Danish court tackles balance between copyright and freedom of
speech and religion

by Jakob Plesner Mathiasen

On 8 June 2021, the Danish High Court issued a ruling in a case concerning a conflict between copyright protection and freedom of speech and religion.

Background

In 1921 Danish philosopher Martinus Thomsen (1890 – 1981) had an epiphany, where Jesus – according to Martinus – appeared and entered Martinus’ body. This led Martinus to become a prophet and write The Third Testament (in continuation of the Old and the New Testament). An enormous work of approximately 10,000 pages.

Martinus died in 1981 and left the copyright in The Third Testament to the Martinus Institute, a self-governing non-profit institution, which was then responsible for publishing the work of Martinus. The Institute subsequently made changes to the work, which sparked fury among some of Martinus’ approximately 40,000 followers.

The followers believe that The Third Testament is a holy scripture, and that not even a comma can be changed. As stated by one of the followers during the trial the consequences would be much more severe than any sanction from the courts: “Anyone who violates a holy scripture will, as the Bible says, be condemned”.

Therefore, the followers published Martinus’ original work without permission. The followers claimed that it was an act of emergency and in accordance with their freedom of religion and speech under Articles 9 and 10 of the European Convention on Human Rights.

The followers argued that the Institute had made undue changes to the original work, that the work had a special sacred status, and that the Institute had refrained from publishing the original work. As a result, the followers found themselves bound to take on this responsibility.

When the work was published by the followers without the Institute’s permission, the latter brought a case before the Danish High Court claiming that the actions of the followers were an infringement of the copyright passed on to the institute.

Martinus Thomsen

The judgment

The High Court held that the conflicting rights and interests had to be balanced. In this case they were the followers’ rights to freedom of religion and speech under Articles 9 and 10 of the Convention vis-a-vis the Institute’s copyright.

The court pointed out that the followers’ publishing of The Third Testament did not have a commercial purpose. The court also emphasized that the followers were free to express their own opinions on The Third Testament and criticize the Martinus Institute as regards how the institute managed its task of preserving and publishing the work of Martinus.

This said, the court did not consider it necessary for the followers to publish the full text of Martinus’ work in order for them to exercise their freedom of religion and speech. Therefore, the court held that the institute’s copyright had been infringed and ruled in favour of the institute.

Comments

The decision reflects the requirement that, when protection of copyright and freedom of religion and speech are in conflict, courts must balance the conflicting considerations based on the specific circumstances at issue. The decisive factor in these cases will most likely be whether the prima facie copyright infringing actions were necessary in order to make it possible for the defendants to exercise their freedom of religion and speech. In this case, the followers could have obtained their goal by less intrusive actions than publishing all of the 10,000 pages in The Third Testament.

Striking a balance between copyright and freedom of speech is not new to Danish courts and has been the subject of many cases in recent years. In 2020 the District Court, for instance, rejected that a newspaper – with reference to Article 10 - could publish drawings of the sculpture of The Little Mermaid as a zombie or wearing a mouthpiece without permission. The article’s purpose was to show that the debate culture in Denmark had been radicalized. However, according to the court, it was not necessary to use drawings of The Little Mermaid in order for the newspaper to convey the message in the articles.

In general, Danish courts seem reluctant to allow unlicensed uses of copyright-protected works for purposes of freedom of speech (or religion), especially when the use of the works is extensive. Generally speaking, Danish courts carry out a proportionality test, which is in accordance with the case law of the European Court of Human Rights (ECtHR) on Article 10.

The IPKat has previously reported ECtHR case law regarding this subject, including Ashby Donald v. France (Ashby Donald) and Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden (Pirate Bay). In those cases, the ECHR acknowledged that national courts a wide margin of appreciation to decide on the conflict between copyright and freedom of expression, as long as they comply with the requirements under Article 10(2). The Danish Martinus case seems to be in line with ECtHR case law.