(Apr. 30, 2021) On April 15, 2021, the Swedish Patent and Market Court held that classic texts that are part of the Swedish cultural heritage may be quoted or reproduced unaltered, even when the context is offensive to the general public. (Patent and Market Court Case No. PMT 17286-19, on file with author.)
Section 51 of the Swedish Copyright Act (Upphovsrättslagen (SFS 1960:729)) provides that texts that are in the public domain and no longer protected by copyright but are part of the Swedish cultural heritage may not be reprinted in a manner that violates the “interest of spiritual cultivation [andliga odlingens intressen].” Specifically, section 51 provides as follows:
If a literary or artistic work is reproduced in public in a manner that violates the interests of spiritual cultivation, a court may, at the request of an authority determined by the government, under the penalty of a fine issue a prohibition on reproduction. What has now been said shall not apply to reproductions that take place during the lifetime of the author.
This provision is commonly known as the classic works protection (klassikerskyddet) in Sweden and the Nordic countries. The provision was originally included in the Copyright Act in 1961 to protect classic works from being distorted and provides public authorities with the right to bring claims on behalf of deceased authors. However, the provision has not previously been tried in Swedish courts.
Citing the classic works protection, the Swedish Academy filed a claim against the neo-Nazi organizations Nordfront and Nordiska motståndsrörelsen, claiming that the use of quotes from several known Swedish authors (including Viktor Rydberg, Verner von Heidenstam, and Esaias Tegnér) on their websites violated section 51 of the Copyright Act. The academy argued that the publication of the texts was offensive and altered the context of the specified national romantic poems to make them appear as endorsements of their neo-Nazi political agenda. The Swedish Academy also noted that among other concerns, the classic texts appeared next to other texts by the two neo-Nazi organizations, which could lead a typical Swedish reader to perceive the classic texts as instigation against an ethnic group or instigation of violence.
The Patent and Market Court recognized that the Swedish Academy had standing in the case and could bring claims on behalf of deceased artists. The court further noted that the texts reproduced in this particular case had been important during their time of publication (the 1800s and 1900s) and are therefore now part of the Swedish cultural heritage.
The court proceeded to note that no body of legal precedent had developed, either in Sweden or another Nordic country, that could guide the court’s interpretation as to when the classic protection applies. Therefore, the court proceeded to analyze the legal history of the provision (SOU 1956:25).
The Patent and Market court determined that section 51 protects works only from being reproduced in an altered and offensive form, unlike section 3 of the Copyright Act, which protects living authors from having their works quoted or reproduced in a manner “offensive to the author’s literary or artistic reputation or originality.” Thus, the court held that section 51 does not prohibit the unaltered citation or reproduction of a text that is part of the Swedish cultural heritage, even if the circumstances surrounding the reproduction are offensive to the general public.
The court particularly noted that because a more expansive interpretation of the classic protection could interfere with the constitutional right to freedom of expression, any expansion of the classic protection beyond that found in the legislative history must be made by the Swedish Parliament and not the courts.
The Swedish Academy may seek leave from the Supreme Patent and Market Court to hear an appeal of the verdict no later than May 6, 2021. Leave to appeal may be granted only if the court doubts the correctness of the verdict, if the court cannot determine the correctness without granting leave to appeal, if it is necessary to guide judicial interpretation, or if there are extraordinary reasons for doing so. (3 kap. 1 § Lag om patent- och marknadsdomstolar (SFS 2016:188); 49 kap. 14 § Rättegångsbalken (SFS 1942:740).)
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