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What are the implications of the Swedish Supreme Court’s interpretation of the Swedish Copyright Act?

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Golden Lady Justice Photo: Emmanuel Huybrechts CC-BY

Few people have by now missed the decision by the Swedish Supreme Court that came on 4th of April. The decision is about Wikimedia Sweden’s open database offentligkonst.se. The Supreme Court found that the website constitutes an unauthorized transmission to the public of the images on protected public artwork because it is not considered to be covered by the specific provision in the Swedish Copyright Act. The Supreme Court argue that this type of use of the artworks typically can not be considered to have a minimal commercial value for the database owner or the person making the database available to the public, even if they have no commercial purpose. The Supreme Court considers that a commercial value shall be reserved for the Artists, and they are entitled to compensation for such exploitation. The Supreme Court also believes that the use of Wikimedia’s open database entails a much greater restriction of the artist’s exclusive rights than what the legislature had in mind.

The Supreme Court’s decision is, in fact, answers to two questions that the District Court referred to them for assessment in the pending case between Wikimedia Sweden and the Visual Copyright Society in Sweden, called Bildupphovsrätt. The Supreme Court has thus interpreted the current provision in § 24 article 1 of the Copyright Act, but is careful to indicate that the interpretation has been made with the particular object in mind, i.e. Wikimedia’s database offentligkonst.se. The Supreme Court writes in their decision “the right to exploit works in new technology in this way remains, according to the present law, with the Artists.”. In other words, the Supreme Court argues that current Copyright Act is not designed in such a way that a database like Wikimedia’s is covered by the actual provision. A finding that easily brings to mind the gap that exists between copyright and the digital habits of most people. With the Supreme Court’s interpretation as a starting point, the District Court has got the answers to their two questions of principle and will now be able to adjudicate between Wikimedia and Bildupphovsrätt.

What consequences can the Supreme Court interpretation otherwise get? The Supreme Court has determined that an open accessible database of the kind that Wikimedia’s is too intervention in the artist’s exclusive rights. However, what the Supreme Court do not mention is the limit to what can be considered a database of “not insignificant commercial value”, when a database is considered “open”, when it is considered to infringe the Artist’s legitimate interests or when it is a question of a much larger restriction of the Artist’s exclusive rights than was the intention of the legislature. The two questions from the District Court were responded by the Supreme Court explicitly with Wikimedia’s database as a starting point. It is, therefore, a reason to limit the Supreme Court’s interpretation to that particular type of database. Furthermore, the Supreme Court’s interpretation does not exclude other forms of digital publishing of protected public artwork on the web to be incompatible with § 24 Article 1 of the Swedish Copyright Act.

For Digisams participating heritage authorities and institutions, there is nowadays a possibility to sign an agreement with Bildupphovsrätt in accordance with the recommendation that was negotiated in 2015. The agreement also includes the kind of exploitation that are subject to the present case. The purpose of the agreement is to give the individual institution the possibility to make its image database available to the public on a website that the institution has the authority over and to publish maximum 120 individual images from the database to show examples of its content. Learn more about the image agreement here.

Catharina Ekdahl
Digisam/Swedish National Archives
Legal advisor

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