Translation:The Visual Arts Copyright Society in Sweden v. Wikimedia Sweden

REFERRING COURT

Stockholm district court

Box 8307

104 20 Stockholm

PARTIES

Complainant at the district court

The Picture Copyright Society in Sweden ek. för., 769610-3121

Hornsgatan 103

117 28 Stockholm

Representative: Attorney PA

Respondent at the district court

Wikimedia Sverige, 802437-8310

Box 500

101 29 Stockholm

Representative: Attorney HB and attorney RL

THE CASE

Copyright violation

DECISION OF THE DISTRICT COURT TO MAKE REFERENCE IN PURSUANT TO '''56 CHAP. 13 § CODE OF JUDICIAL PROCEDURE'''

Stockholm district court's decision 2015-02-16 in case T 8448-14

__________

THE SUPREME COURT'S DETERMINATION

The supreme court explains that the provision in 24 § first part 1 the copyright law, since the exemption to the authors exclusive rights is limited to depictions, does not give Wikimedia the right to from its database containing photographs of artworks, permanently placed on or by public places outdoors, transfer works via the internet to the general public. Whether the activity is for a commercial purpose has no significance.

GROUNDS

Background

1. Wikimedia Sweden is a non-profit association which among other things maintains a website and a database containing pictures of art works placed on public places outdoors. The database is freely available for the general public at no cost. It is also the general public which supplies the database with the pictures by uploading their photographs to it. The purpose is to maintain a public database of public art work in Sweden which can be used a among others the general public, the education system and the tourist industry.

2. The Visual Arts Copyright Society in Sweden ek. för. (BUS) is the organisation in Sweden which in the field of visual arts represents the authors and collects and distributes royalties from license agreements.

3. BUS has sued Wikimedia in Stockholm district court regarding copyright violation. The suit concerns three sculptures which are permanently placed on public places outdoors. BUS seeks among other thing to enjoin Wikimedia from through transmission making art works available to the general public. As basis for its complaint BUS claims Wikimedia violates the authors exclusive rights by making art works available for the general public on the present website. Wikimedia denies the complaint and argues among other things that according to the provision in 24 § first part 1 the copyright law on exemption to the exclusive right the relevant activities on the website are allowed, as the provision gives a right not only to produce copies without the ability to transfer the copy. According to Wikimedia the Swedish provision cannot by a directive conformative interpretation be interpreted more narrowly than what follows from the so called Infosoc-directive (cf. p. 10)

The referred questions

4. The district court has referred the following questions to the Supreme court.


 * 1. Shall the term "depict" in 24 § the copyright law be understood such that art works which are permanently placed on or by public place outdoors, may freely be transmitted to the general public via the internet, without requirement of getting permission or paying compensation to the author?
 * 2. Is the answer influenced by whether the transmission is for a commercial purpose or lacking such a purpose?
 * 2. Is the answer influenced by whether the transmission is for a commercial purpose or lacking such a purpose?

The legal regulation of copyright

5. Anyone's property is constitutionally protected by 2 chap. 15 § the Instrument of Government. It provides that no one can be forced to surrender his property to the public or someone private through expropriation or any other such disposition except when it is required to further important public interests. 2 chap. 16 § provides further that writers, artists and photographers own the right to their works in accordance with provisions as provided in law (cf. article 17 in EU's charter of fundamental rights).

6. The copyright law gives the author protection for the literary and artful works, such sculptures, that he or she has created (1 §). The protection is constituted by an exclusive right to dispose of the work by producing copies of it and making it available for the general public (2 §). These economic rights may in whole or in part be transferred or surrendered (27 §). The author in addition has protection for his moral rights. The moral right cannot be transferred except in limited circumstances.

7. A work is made available to the public through among others transmission or distribution. Transmission to the public involves the work through wired or wireless channels being made available to the public from a place other than where the public can take partake in the work. This it also includes transmission which happens in such a way that private persons can get access to the work from a place and at a time that they choose themselves. Distribution refers to when physical copies of the work is offered for sale, rent or borrowing or otherwise spread to the general public. (2 § third part 1 and 4 the copyright law.)

8. Against the authors exclusive right stands the public interest in certain situations or for certain purposes in using protected works without the hindrance of copyright law (see prop. 1960:17 p. 60). In the copyright law this is reflected by the exemption provisions in the law 2 chap. The provisions permits ways to make use of the work under specifically stated conditions. In addition the law gives other options for usage through the provisions on license-agreement in 3 a chap.

9. The law's preparatory works has on a number of times emphasized that the exclusive rights constitute assets of wealth and that restraint should be followed in introduction and interpretation of exemptions of the rights (see among others prop. 1992/93:214 s. 41 ff. and prop. 2004/05:110 s. 83 f.). According to NJA 1986 s. 702 and NJA 1993 s. 263 the room for the courts to find other exemptions of the exclusive rights than those than those stated in the law is very small.

The Infosoc Directive

10. The copyright law must be interpreted against the background of the European Parliament and the council's directive 2001/29/EC of the 22th of may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (The Infosoc Directive). The directive was implemented in Sweden in 2005. It has the purpose of partially harmonizing copyright law so that it does not hinder trade of goods across the borders of the member states. National provisions which differ significantly between the member states needed to be adjusted but differences which did not have any negative effect on the internal market did not need to be adjusted (see recital 7 in the preamble to the directive, cf. the EU Court's judgement C More Entertainment C-279/13, EU:C:2015:199, paragraph 29). The directive sets up a strong protection of copyright, primarily in the digital environment. It also seeks to maintain a balance against important public interests in making use of works.

11. The directive contains an exhaustive enumeration of permitted exemptions in the rights that are regulated in the directive (article 5). Article 5.5 sets up what's commonly referred to as the three step test, namely that (1) the exemption only applies in certain special instances (2) which do not conflict with the normal exploitation of the work and (3) does not unreasonably prejudice the rightholder's legitimate interests (cf. recital 44 in the preamble to the directive). Similar provisions are found i.a. in article 9.2 in the Berne Convention for the Protection of Literary and Artistic Works as well as in article 10 in WIPO-treaty on copyright.

12. The three step test's criteria entail firstly that the concerned exemption must be for a special situation, i.e. an exemption must be clearly defined and specified. What thereafter concerning the normal exploitation of the work shall be noted the exemption does not compete with the author's right to economically exploit his work. In that lies not only the current exploitation without a dynamic construction which takes into account the authors right to exploit the work in the new ways that the technological advancement opens for. Finally shall be tested whether the exemption would unreasonably prejudice the author's legitimate interests. Here it must be weighted whether the exemption of the exclusive right can be motivated by a stronger public interest. Accordingly it is a determination of proportionality.

13. In lawmaking regarding exemptions to copyright the principles in the three step test must be taken into account (see prop. 2004/05:110 s. 83 f.). This should also be seen as an instruction in the courts determination of how the various provisions on exemptions to copyright shall be construed.

Exemptions in 24 § first part 1 the copyright law

14. According to 24 § first part 1 the copyright law art works may be depicted if they are permanently placed on or by public place outdoors. The provision is based on the public interest in being able to freely reproduce city- or landscape views without hindrance of rights to art works which are part of it. In the preparatory works to the copyright law the provision is described as an exception to the artists exclusive right to duplicate the art work. With the term depiction meaning that the art work may be reproduced through painting, drawing, photography or other technique by which the art work is reproduced in the plane (two-dimensionally).

15. Depiction is allowed even when an art work constitutes the main subject, e.g. on a postcard. **That such a depiction should be permitted raised the question of whether it the artist have the right to be compensated for production and distribution of postcards. For practical reasons, and because such a right to depiction was viewed as having very little economical significance for the artists, no such rule on right to restitution was introduced. It may be noted that the Swedish regulation deviates from the what's in force in the other Nordic countries, where the exemption does not cover commercial exploitation of depictions where the art work is the main subject. In later lawmaking works it has been considered whether the Swedish provision should be limited, i.a. to not cover works as main subject. It has however not lead to any change in the law. (See SOU 1956:25 p. 264 f., SOU 1990:30 s. 480, prop. 1992/93:214 s. 100 and Ds 1996:61 s. 83 f.)

16. In the implementation of the Infosoc Directive 24 § got it's present wording. Regarding utilisation of works, for example architectural works or sculptures, meant to be permanently placed on a public place exemptions may, according to article 5.3.h in the directive, be made in the right to produce copies and in the right to make the work available to the public. In connection with the law changes the cabinet remarked that the directive sets an outer boundary for which exemptions that are permitted in the national legislation. Regarding the exclusive rights regulated in the directive the member states may not have any exception or exemptions which exceed what is allowed in the directive. It was remarked that depicting in the national provision meant reproduction in the plane. It was therefore considered in a number of way more limited than the exemption permitted by the directive. Any substantial change in the provision was therefore not necessary. (see prop. 2004/05:110 p. 46 and p. 226). In connection with that the provision's compliance with the and the three step test had been questioned in the hearing answers it was however remarked that the question of whether it should be further limited should be re-examined at another occasion. Any substantial review of the provision has not been made thereafter however.

The supreme courts assessment

17. The case concerns how the term "depict" in 24 § first part 1 the copyright law should be understood against the background of the presented situation. Wikimedia has a database with photographies of on public place placed art works. The works are through transmission made available to the public.

18. The copyright law has been reviewed at a number of occasions, i.a. in connection with the implementation of the Infosoc Directive. The latest review was made in the report SOU 2011:32, A new copyright law, in it it is emphasised that the content of the term "depict" had been subject of discussion and that there was reason to clarify the term (see p. 172). The report has however not yet lead to any legislation in this matter.

19. An assessment of what exception of the authors exclusive right that is implied by the term "depict" should be modelled on the three step test (see p. 11). In a situation as the now present conflict it should be determined what is a normal exploitation of an art work on public place. Herein lies an assessment of which exclusive right the author shall have to economically exploit his work. It must then be noted that the exemption in the exclusive right for example distribution of postcards are not relevant in at this stage. This exemption came to be by reason of practical considerations at a time when what was at stage was production and distribution of a relatively limited amount of analogue depictions. The case is different when the art work is used in a digital environment.

20. In present case the works become publicly available in an open database. Such a use of art works have typically seen a not insignificant commercial value, either for the person keeping the database or for the person whom in connection with other services facilitates traffic to the database, for example, through linking. This value must reserved for the art works authors. Whether the person keeping the database by himself has a commercial purpose has no significance.

21. The question is then whether a transmission to the public, in the way it takes place from Wikimedia's database, unreasonably prejudices the authors legitimate interests. The starting point is that the provision in 24 § first part 1 the copyright law shall by narrowly construed. This is to be balanced against the purpose of which the database is meant to further (see p. 1). This purpose in it self lies within what can be seen as a public interest. A database of the present kind does however reach a too large amount of utilisation of copyright protected works, without any compensation being paid to the authors. It thereby becomes a question of significantly larger exemption in their exclusive right than what is the purpose of the provision.

22. The right to with new technique exploit works in this way therefore lies in the law's present formation with back with the author.

Conclusion

23. The provision in 24 § first part 1 the copyright law, where the exemption in the authors exclusive rights are limited to depictions, does not give Wikimedia the right to from it's database with photographies of art works permanently placed on or by public places outdoors, transmit works by the internet to the public. Where the activity is done for a commercial purpose has no significance. The referred questions shall accordingly be answered with this.

24. The question of compensation for costs in the Supreme court shall be tried by the district court in connection with the case after it's resumption.

__________

In the decision participated: Councillors of Justice Marianne Lundius, Ella Nyström, Gudmund Toijer, Johnny Herre and Lars Edlund (reporter)

Reporting Justice Secretary: Elisabet Rune