Landmark Judgment on the Protection of Classics in Sweden
22 April 2021
Authors: Elisabeth Vestin and Sofia Widegren
For the first time in Sweden, the provision of Section 51 of the Swedish Copyright Act that protects classics (in Swedish: klassikerskyddet) has been tried in court. The case was a long time coming, as the provision was introduced at the same time as the Swedish Copyright Act was passed in 1960. However, the Swedish Patent and Market Court did not find the provision to be applicable in the circumstances at hand in the case.
Section 51 of the Swedish Copyright Act protects significant literary or artistic works that have become part of the Swedish cultural heritage and whose author is deceased. Such works may not be publicly reproduced in a manner that violates cultural interests. Otherwise, a court may issue an injunction prohibiting such reproduction under the penalty of a fine.
Only three authorities (or entities) appointed by the Swedish Government have the right to file a claim based on the provision: the Swedish Academy, the Royal Swedish Academy of Music, and the Swedish Royal Academy of the Free Arts — each within their respective area of expertise.
In the case at hand, the Swedish Academy, an independent cultural institution advancing the Swedish language and Swedish literature, filed a claim against the Nordic Resistance Movement (the “NRM”), a Pan-Nordic neo-Nazi movement and a political party in Sweden, and Nordfront, an online news site run by NRM, as the Swedish Academy was of the opinion that they had violated the provision. This is because excerpts from poems by the famous Swedish authors Esaias Tegnér, Verner von Heidenstam, and Viktor Rydberg, as well as the poem Hávamál, had been published on the website nordfront.se. Thus, the Swedish Academy argued that the poems had been reproduced in an offensive context.
As the provision has never been tried in Sweden before, the best (and virtually only) guidance for its interpretation can be found in the preparatory works for the Swedish Copyright Act, which are from the 1950s. The preparatory works state that the provision is applicable only in such cases that, from a public cultural point of view (in Swedish: allmänt kulturell synpunkt), are considered serious violations. It is not enough that an expert on the topic finds the reproduction to suffer from shortcomings. It is the educated public which ought to find the reproduction, at large, to be a serious violation, taking into account all relevant circumstances. In other words, the provision must be applied restrictively.
In its judgment issued on 15 April 2021, the Patent and Market Court stated that the poems were written by authors who were very famous in their time and that their works had become part of the Swedish cultural heritage. Thus, the poems where such works that could fall within the scope of application of the provision. Furthermore, the Court clarified that the provision is an exception from the main rule that works can be used freely after the term of copyright protection has lapsed. Therefore, a broad interpretation of the provision could have negative effects on the freedom of speech and freedom of the press.
The Court found that the preparatory works only provided examples of works that had been altered, changed, or desecrated, which did not support the interpretation that unaltered reproductions could fall within the scope of the provision. According to the Court, this is the case even if the unaltered reproductions are published in a context that is offensive from a public cultural point of view. Thus, as the poems published on the website nordfront.se were unaltered, the Court found that the provision was not applicable. Consequently, the Court ruled in favour of the NRM and Nordfront.
It could be argued that the preparatory works and the interpretation of the provision are perhaps not as clear as the Court presents it. As the Court points out, the quality of the alteration, the look of the publication, the choice of illustrations, the way the author is presented, and the way the work is presented are all of relevance. Given that the purpose of the provision is to protect the moral value of classics, this could lead to the alternative conclusion that not only alterations fall within its scope.
The ruling is not yet final, and it remains to be seen if the Swedish Academy appeals the judgment to the Swedish Patent and Market Court of Appeal.