Freedom of information or protection of copyright?

On 18 March 2020, the Supreme Court delivered its judgment in the case between SVT and Kent Ekeroth, a former member of the Swedish parliament and the political party Sweden Democrats. The question raised was whether Ekeroth, in the capacity of copyright holder of a film, has the right to compensation from SVT as the company, without prior consent, has published certain sequences of the film.

SVT claimed that the company was entitled to use the content of the film due to the limitation of the copyright stated in articles 23 and 25 of the Copyrights Act.

The Court concluded that article 5.3. c of the Information Society Directive provides a broader limitation to copyright in relation to news reporting than article 23 and 25 of the Copyrights Act. However, regardless if the Swedish implementation of the directive would be incorrect, the Court stated that it is not possible to interpret the relevant articles in contradiction with their wordings.

Based on this, the Supreme Court stated: “SVT has not presented evidence showing that the photographs from the film have been made public according to the Copyrights Act, which is a prerequisite for the limitation in article 23 of the Copyrights Act to be applicable. Further, the limitations of article 25 of the Copyrights Act is not applicable: the photographs and the recordings cannot be deemed to have been seen or heard in the course of an event, which is a prerequisite for this limitation to be applied.”

The Court also concluded that the interest of freedom of information may not eliminate the right for compensation which the copyright owner, according to the Copyrights Act, is entitled to for SVT’s use of the film.

Based on the above, the Supreme Court affirmed the judgement of the Patent and Market Court of Appeal. Hence, SVT is obligated to compensate Ekeroth for its use of the film.