The latest copyright decision of the Swedish Patent and Market Court of Appeal, given on 15 July 2019 ( PMT 14029-16), concerns the use of a film (recorded through a mobile phone) as well as the use of photos extracted from the film sequence by a TV channel. The issue at hand addressed whether the use of previously unpublished (from a copyright perspective) film sequences constitute copyright infringement, or whether copyright limitations (such as news reporting or parody), are otherwise applicable.

The film in question (called the “iron pipes” film) showed three leading politicians of the Swedish Democrats party entering into a fight and using racist and sexist language against a heavily intoxicated man as well as against passers-by. The film was recorded by one of the three politicians (K.E.), part of which was published with the author’s consent in the official Youtube channel of the party.

The interest in this film was understandable, taking into account the role of the participants from the Swedish Democrats and that the film was recorded just a few months before the 2010 national elections. Parts of the same film were used by the state television channel (SVT) both for news reporting and parody. However, the film sequences used by the SVT were not the ones made available to the public by the author or with his consent.

K.E. sued SVT for copyright infringement. The SVT had used sequences of that iron pipes film (which had had been made available to the public on the homepage of the newspaper Expressen, but without the authorization of the author) to made copies, but omitted to identify K.E. as the author.

According to the Court, the film sequences and the photos considered in this case had not been made available to the public from a copyright-law perspective, since they had not made available by the author (or with his authorization).

The Court then considered the possible applicability of two copyright limitations. First, it considered 23 § 1 3st of the Copyright Act concerning news reporting by newspapers and magazines, concluding that one of the most important criteria for the application of this limitation, namely the fact that photos need to have previously been made available to the public, was not fulfilled. The Court reached the same conclusion concerning 25 § Copyright Act, relating to the use of films in TV news reporting (and on svt.se).

To the contrary, the Patent and Market Court of Appeal held that the use of these sequences for the purposes of parody were covered by the parody exception and thus this use did not constitute infringement of K.E’s neighboring rights.

The ruling of the Patent and Market Court of Appeal affirms that of the Patent and Market Court, although on different grounds. The Court provides an extensive discussion concerning the conformity of the Swedish law with the Infosoc Directive (Official Journal L 167 , 22/06/2001 P. 0010 – 0019) in particular with regard to the concept of parody. Article 5.3 (k) of the Infosoc Directive gives Member States the flexibility to introduce an exception for use for the purpose of caricature, parody or pastiche .

Although Sweden did not, during the implementation of the Infosoc Directive, choose to introduce an explicit parody exception, Swedish copyright law had already included a parody exception as developed in the case law of the Supreme Court. The Court provides for an explanation why the legislator was silent in this respect during the implementation of the Directive. Thus, according to Swedish case law, parody is in itself an independent work, which means that there is no need for limitations or exceptions to a third party’s copyright.

However, according to the Court, the Swedish approach, providing that parody is an independent work under copyright, could raise concerns as to its conformity with EU law. According to the case law of the CJEU (see Deckmyn C-201/13 para 33), parody has to evoke an existing work yet be noticeably different from it, while constituting an expression of humor or mockery.

Giving a close look to use of copyrighted material On the other hand, according to Deckmyn, parody does not have to mock the copyrighted work (indeed, the copyrighted work may be “appropriated” to mock something else); it does not itself constitute an original work of art; nor does it have to be attributed to someone else than the author of the copyrighted work or mention the source of the parodied work.

The Court concludes that the use of the film at hand is a parody since the SVT film (with the music and text added) is significantly different from the K.E. film. At the same time, the Court clarifies that the pre-Infosoc parody principle, requiring the originality of the parody in order for the exception to be applicable, should not be employed since it is not in conformity with the Directive.

As for the argument that the right to freedom of expression of SVT trumped the intellectual property rights, this claim was rejected. The Court recognized the importance of informing the public of the acts of politicians (in particular when such acts occur just before national elections are set to take place).At the same time, however the Court noted that nothing would have prevented SVT from informing of the specific incident without using the film or the actual photos in question.

With regards to the infringement of K.E.'s moral rights, the Court concludes that in connection with the film, 3 § of the Copyright Act ( providing for moral rights) is not applicable. To the contrary, pursuant to 49 § of the Copyright Act, photographs enjoy moral rights protection; as such, K.E’s moral rights have been violated.