[Guest Post] The wisdom of Dune and copyright litigation

Kat friend Hans Eriksson discusses an interesting decision (only available in Swedish) concerning copyright protection and originality, namely whether the sequence of twenty words in an instruction manual may be regarded as being enough for copyright to arise.

Here's what Hans writes:

The author was recently reminded of the opening lines of Frank Herbert’s sci-fi epic Dune: “A beginning is the time for taking the most delicate care that the balances are correct.” This Dune tells us, every member of the secretive Bene Gesserit sisterhood knows. The author argues that copyright holders would do well to heed this wisdom before entering into litigation, as exemplified by a recent decision from the Swedish Patent and Market Court in case PMT 2401-21.

Modern copyright jurisprudence offers protection, not only to classical types of literary and artistic works such as books and movies (as an illustrious example, Denis Villeneuve’s new Dune adaption, in cinemas everywhere), but also to less inherently artistic and perhaps more mundane expressions of human creativity. As for the “amount” of expression needed to enjoy protection, famously as little as eleven consecutive words can in principle enjoy copyright protection as a protectable part of a work, as set out by the Court of Justice of the European Union (CJEU) in Infopaq, (C-5/08), recognized as the most consequential European copyright decision of the last decade by this blog [Katpost here].

But sometimes even this arguably generous interpretation of what may constitute a work, or a protectable part thereof, may be pushed beyond its limits, as seen in for example Levola Hengelo, (C-310/17) when testing the legally creative notion that copyright could vest in the taste of cheese. These kinds of efforts to push the boundaries of what constitutes a work are on the one hand important, as they enable copyright to develop organically and with the times. On the other hand, these cases can sometimes end up looking more like lawsuits tilting at windmills, with little chance of success.

The case at hand concerned a Swedish supplier of a roof snow guard system, suing a Norwegian competitor. Not exactly the typical setup for an international copyright fracas even though it obviously snows a lot in the Nordics and city-dwellers are loathe to have to look up from their phones to avoid being hit in the head.

The claimant sold its roof snow guard system with an instructional manual that included a twenty-word description of how the system of hooks should be installed on roofs: “Half the hooks shall be mounted on each roof tile in rows from the eaves upwards. Remaining hooks are evenly distributed over the roof.” The defendant argued that this twenty-word installation instruction infringed its copyright in a similar installation instruction, supplied with the defendant’s similar system: “50% of the estimated number of [brand] hooks are mounted on each roof tile, from below and upwards along the roof. [Brand] should always be placed on the bottom line on each roof tile. The remaining 50% is evenly distributed over the rest of the roof, but not on the top two rows.” This instruction was followed by an explicit copyright notification “Copyright [Brand]”. Over several years, the defendant had sent cease and desist letters to the claimant’s customers, alleging that claimant infringed defendant’s copyright in this instructional manual. 

The claimant sued the defendant seeking a declaratory judgment that its use of the twenty-word installation instruction did not infringe defendant’s copyright and sought a prohibition against the defendant’s marketing (sending cease and desist letters to claimant’s customers) under the Swedish Marketing Act (SFS 2008:486).

Turning first to the question whether the defendant’s installation instruction displayed sufficient originality to constitute a work protected by copyright, the Swedish Patent and Market Court (the court) applied the CJEU’s originality jurisprudence, emphasizing how the result should express the author’s personality and should demonstrate how the author had used creative abilities in the production of the work by making free and creative choices (Painer, (C-145/10), para 88-89). The court also pointed out that copyright does not protect the idea but rather the expression thereof (the idea-expression dichotomy). What the defendant could possible argue should enjoy copyright protection in this case would be the expression of the installation instruction, not the method or idea behind that instruction. In this case there was a further complication for the alleged copyright holder, in that the copyright holder itself argued that the contents of the installation instruction were also the direct result of technical considerations following from the functioning of the roof snow guard system, thus arguably limiting even further the scope of any human creative effort that could have been involved in the drafting of these installation instructions.

The court was content to point out that even if the defendant’s installation instructions had expressed enough originality to qualify as a work and enjoy copyright protection – and this was hardly evident in the court’s view (quite an understatement in the author’s view) – the scope of protection for such a work would have been minimal. According to such a narrow scope of protection, only direct copies of the installation instructions could have constituted copyright infringement, and in this case, there were numerous differences between the wordings of the claimant’s and defendant’s respective installation instructions. Even if the defendant’s installation instructions had constituted a protectable work, the claimant’s installation instructions would not have infringed that copyright.

The court thus granted the claimant’s declaratory claim, finding that the claimant’s installation instruction did not infringe the defendant’s copyright. As for the claim that the defendant’s cease and desist letters constituted marketing activities and violated marketing law, the court found that cease and desist letters normally constitute marketing under the Swedish Marketing Act. To no one’s surprise, alleging infringement of intellectual property rights in a competitor’s products, to the competitor’s customers in cease-and-desist letters, was found to constitute marketing activities that could be tried under the Marketing Act. In turn, alleging copyright infringement in such letters were there was none, was found to not be in accordance with the Marketing Act, and a prohibition on penalty of a fine was issued.

Sometimes this author gets the impression that people interpret  Infopaq, (C-5/08) to mean that as little as eleven words enjoy copyright protection, full stop. Rather than that as little as eleven words may in certain cases enjoy protection. Understanding copyright as a dynamic right that can protect both mundane types of works, like installation instructions to a product, as well as high art, is both correct and laudable, but litigants are recommended to tread lightly on the outskirts of what is traditionally considered to be protectable subject matter. Put another way, litigants are recommended to carefully assess the protectability of a work and scope of protection and make sure the balances are correct in the beginning, before swinging the crysknife in copyright litigation.