Swedish Supreme Court rules against Freedom of Panorama
Wikimedia’s Swedish chapter was sued in 2013 by BUS (Visual Arts Copyright Society in Sweden) for the site Offentligkonst.se, a site where you can upload your own images of public art so that others can easily find them. BUS claimed that Wikimedia Sweden violated copyright law by publishing images of public artwork online. The Supreme Court ruled in favour of BUS.
In Sweden, copyright law recongnises an exception that we call „Freedom of Panorama“. This means that, while architecture and sculpture are protected, everyone is free to make derivative works of them, such as photographs and paintings. The exception even applies when the works are used commercially, like in postcards or picture books. The Swedish Visual Arts Copyright Society claimed however that this applies only to printed materials, but not online. Wikimedia didn’t agree to take the images off its projects and was taken to court.
On 4 April, after three years of litigation, the Supreme Court ruled in favour of BUS by choosing an extremely restrictive interpretation of copyright law, which runs counter to the usual interpretations of the Court of Justice of the European Union (CJEU) in this type of cases. The result is an anachronistic decision that practically means that you are not allowed take a picture of a building in Stockholm and distribute it online, while it is still completely legal for you to publish that same image as a paper postcard and sell it for profit.
It seems the Swedish Supreme Court has gutted the country’s Freedom of Panorama by simply declaring that the the law’s statement that “Works of art may be reproduced…” (“Konstverk får avbildas…”) doesn’t apply to the Internet. In order to reach this conclusion, the judges are citing the Information Society Directive, which contains the wording “imposes a strong protection of copyright, especially in the digital environment” and the fact that other Nordic countries don’t have Freedom of Panorama. The latter statement is not actually true, as Denmark, Finland and Norway have such an exception, albeit only for architecture.
Their basic conclusion of the court is that the law must be interpreted as conservatively as possible because otherwise it would “unreasonably prejudice” the author’s financial interests. The public interest is not being acknowledged at all in the decision. To explain the difference between print and online, the ruling states that postcards don’t constitute a significant impact on the commercial exploitation, but when it comes to new technologies like the internet, commercial scale can be assumed.
For Wikimedia this is a very disappointing interpretation. Art is an important and enriching element of people’s lives. This is why European societies allocate public funds to purchase and place art in people’s everyday environment. The very principle of public art is that it should be public and accessible. Wikimedia has taken up this basic idea and has dedicated itself to foster the commons by projects like Offentligkonst.se. The Swedish Supreme Court chose to shrink the public domain, in a decision that raises more questions than it provides answers.
Swedish Supreme Court Decision (in Swedish)
http://www.hogstadomstolen.se/Domstolar/hogstadomstolen/Avgoranden/2016/2016-04-04 Ö 849-15 Beslut.pdf
Wikimedia Sweden Press Release (in Swedish) (04.04.2016)
https://www.mynewsdesk.com/se/pressreleases/hoegsta-domstolen-vaeljer-att-krympa-det-offentliga-rummet-istaellet-foer-att-gaa-paa-wikimedia-sveriges-linje-1360834
Wikimedia’s free photo database of artworks violates copyright, court rules (05.04.2016)
http://www.theguardian.com/world/2016/apr/05/wikimedias-free-photo-database-of-artworks-violates-copyright-court-rules
(Contribution by Dimi Dimitrov, Wikimedia Brussels)
