1.         Introduction

It has been highly debated in Sweden whether the filing of evidence containing copyright protected material may constitute copyright infringement following the Göta Court of Appeal’s judgment dated 15 October 2014, in case FT 311-13. The issue is important due to the fact that documentary evidence (such as screenshots) is often protected by copyright. According to older Swedish case law, notwithstanding that the parties are at liberty to adduce dispositive evidence in furtherance of their case, this procedural law principle does not thereby entail that a party has unfettered discretion in this respect such as using another party’s property without permission for the purpose of using it as evidence in litigation. In case FT 311-13, the Göta Court of Appeal stated that if another party’s property is relevant as evidence, the procedural rules governing production of documents may be employed. According to the court, when deciding whether a production of documents order is to be issued, the court should balance the benefit of the evidence against, e.g. the need to protect copyright.

Following the Göta Court of Appeal’s judgment, a discussion was initiated pertaining to the extent to which a third party’s copyright may prevent a party from invoking evidence in court proceedings. It goes without saying that many legal practitioners were deeply unsatisfied with the judgment, as it indicated that copyright may indeed restrict a party’s fundamental right to an effective remedy and a fair trial. Subsequent case law from the Swedish Patent and Market Court of Appeal (the “PMCA”) also seemed to confirm that position. In case no. PMFT 2585-17, the PMCA decided that the filing of a copyright protected text as evidence in court proceedings constituted the unauthorised use of a copyrighted work through ‘reproduction’. Although the court did not consider the filing to constitute an ‘act of communication to the public’, the decision did not appear to accord to legal reality and many parties as well as practicing lawyers can simply be assumed to have ignored the judgment in order to be able to safeguard their interests in the proceedings. Later, in case no. PMFT 4717-18, the PMCA somewhat distanced itself from this position, but the legal situation remained unclear as it was determined that the question of whether a use of a copyright protected work is in the interests of the administration of justice and thus not viewed as an infringement action, is to be decided on a case-by-case basis. Nevertheless, it was concluded in the case in question that when the physical copy was adduced in evidence then such filing constituted a ‘distribution to the public’, clearly emphasising an inconsistency between physical and electronic copies.

Admittedly, it must be regarded as problematic that legal proceedings could be prevented by copyright holders, since what evidence should be allowed, even in the light of copyright, is significant to protect the right to an effective remedy and a fair trial. The Court of Justice of the European Union (CJEU) has already had occasion to emphasise in numerous judgments that it is in no way apparent from the Charter of Fundamental Rights of the European Union (the “Charter”) or from the CJEU case law that the right to intellectual property is inviolable and that protection of that right must therefore be guaranteed absolutely, since that right must be weighed against the other fundamental rights, which include the right to an effective remedy which is also guaranteed in the Charter.  Thus, the CJEU’s recent clarification in case C‑637/19 on whether submission of evidence containing copyright protected content in court proceedings constitutes an act of ‘communication to the public’ pursuant to the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the “Infosoc Directive”), weighed against the right to an effective remedy, is welcome from a practitioner’s point of view. However, the judgment does not provide a solution to the discrepancy between, on the one hand, physically submitted copies and, on the other, digitally submitted copies.

A review will be conducted below of the the essential parts of the CJEU’s reasoning, followed by some remarks on the outcome of the judgment.

2.         The CJEU’s judgement in Case C‑637/19

2.1       Background

The parties to the case were two natural persons, each of whom operated a website. The dispute derived from another case between the same parties, in which one of the parties via e-mail filed a copy of a text page including a photograph from the other party’s website as evidence to the court. Following this, the claimant in the current case, no. PMFT 12151-17, claimed ownership of the copyright to the photograph and accordingly claimed damages from the defendant for copyright infringement or infringement of the special protection for photographic images.

The first instance national court, i.e. the Swedish Patent and Market Court (the “PMC”), decided that the photograph was protected as a right related to copyright, i.e. the special protection for photographic images. The court stated that by submitting the photograph to the court, anyone could request to receive it based on the provisions that apply in accordance with the Swedish constitutional right of public access to official documents. Thus, according to the court, the defendant communicated the photograph to the public within the meaning of the Swedish Copyright Act. However, the PMC considered that it had not been proven that the claimant had suffered any damage and the action was dismissed.

The judgment was subsequently appealed to the Swedish PMCA. In order to be able to adjudicate whether the submission of a copy of the photograph in question to a court constitutes an unauthorised act of making a work available as a distribution to the public or a communication to the public and whether a court may be regarded as falling within the concept of ‘public’, the Court of Appeal submitted a request for a preliminary ruling to the CJEU for guidance on the interpretation of Article 3(1) and 4(1) of the Infosoc Directive.

2.2       CJEU proceedings

Initially, the CJEU noted that it was apparent from the request for a preliminary ruling that the photograph at issue was submitted by e-mail to the court in question in the form of an electronic copy. Since only the distribution of physical copies of a work falls within the concept of ‘distribution to the public’ referred to in Article 4(1) of the Infosoc Directive, the view was taken that the examination only concerned interpreting ‘communication to the public’ within the meaning of Article 3(1) of the Infosoc Directive.

Thereafter, the CJEU pointed out that in accordance with its settled case law concerning Article 3(1) of the Infosoc Directive, the concept of ‘communication to the public’ includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public. In the CJEU case law, it has been established repeatedly that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. In general, this refers to making a work available to persons in general, an indeterminate number of potential recipients, and not restricted to specific individuals belonging to a private group. In the present case, the CJEU duly noted that a communication such as that at issue must be regarded as referring to a clearly defined and closed group of persons holding public service functions within a court, and not to an indeterminate number of potential recipients. Accordingly, the communication at issue was not regarded as having been made to persons in general, but, rather, to specific individual professionals. In light of this assessment, the CJEU held that the transmission by electronic means of a protected work to a court as evidence in legal proceedings between individuals cannot be regarded as a ‘communication to the public’ within the meaning of Article 3(1) of the Infosoc Directive.

Moreover, the existence of national law rules governing access to public documents (as referred to in, e.g. the first instance national court’s judgment) was held irrelevant in this regard. The reason for this is that, according to the CJEU, such access is granted not by the user who has transmitted the work to the court, but by the court to the individuals who so request. Thus, such access is duly granted by the court under an obligation and a procedure laid down by national law relating to access to public documents and, as provided for in Article 9 of the Infosoc Directive, this procedure is expressly not to be affected by the Infosoc Directive.

Finally, and perhaps most importantly, the CJEU emphasised the aim of maintaining a fair balance between the interest of the holders of copyright and related rights in the protection of their intellectual property rights now guaranteed by the Charter and the protection of the interests and fundamental rights of users of protected subject matter as well as of the public interest. In relation thereto, the CJEU referred to its previous high-profile case law in Pelham, Scarlet Extended, SABAM and UPC Telekabel. Consequently, the CJEU, as in Pelham, pointed out that it is in no way apparent from the Charter or from case law that the right to intellectual property enshrined in that provision is inviolable and that protection of that right must therefore be guaranteed absolutely. Consequently, this right must be weighed against the other fundamental rights, primarily the right of everyone whose rights and freedoms are guaranteed by the law of the Union to an effective remedy before a tribunal, as also guaranteed in the Charter. Considering this, it was concluded that the right to an effective remedy would be seriously compromised if a right holder were able to oppose the disclosure of evidence to a court on the sole ground that the evidence in question contains subject matter protected by copyright.

3.         Some remarks

As already noted in the introductory paragraph of this article, the CJEU’s clarification that Article 3(1) of the Infosoc Directive must be interpreted as meaning that the concept of ‘communication to the public’ does not cover the transmission by electronic means of a protected work to a court as evidence in judicial proceedings between individuals, is to be welcomed. It is clear that the CJEU has adopted a legal security perspective so that it is necessary to allow electronic copies of copyright protected material to be submitted as evidence. In our opinion, the CJEU’s conclusion is the only correct one. In practice, it is more or less standard procedure that the parties (not least the claimant) submit written documentation as evidence and that such documentation (e.g. screenshots) may be protected by copyright. It would be quite appalling if a party could prevent the use of evidence, which may be harmful to its case, simply by invoking its copyrights. In our view, the question of what constitutes copyright infringement should be assessed also in the light of the purpose of copyright law. The purpose of copyright law is to promote the progress of useful arts by protecting the exclusive right of authors to benefit from their works of authorship. Typically, the use of a work as evidence in litigation does not threaten the realization of this purpose.

On a related note, this issue also interacts with the Swedish principle of public access to public documents, which constitutes an extensive constitutional right for any party to access official documents under Swedish law. Although, as concluded by the CJEU, this principle only becomes relevant at the later stage, i.e. when someone requests access to the documents from the court. In relation hereto, there is a Swedish proviso for copyrighted material, deriving from the 1990s when secret writings from the Church of Scientology were submitted to a number of Swedish authorities. This generated a great deal of both media and political interest, since anyone could access the hitherto secret writings through the Swedish constitutional right to request access to public documents. Among other things, the United States exerted diplomatic pressure and claimed that Sweden was failing to comply with its international obligations in the field of intellectual property under the Berne Convention and the TRIPs Agreement. The aftermath of the litigation relating to the Scientology writings in the 1990s resulted in a change in the Swedish transparency and confidentiality of public documents legislation, whereby copyrighted works, which are also (part of) public documents, can be protected by confidentiality under certain conditions and not be subject to disclosure in the absence of a specific provision to the contrary. Prior thereto, no such proviso for copyrighted material existed. Thus, a court may rely on this exception, if the conditions therein are fulfilled, in order not to disseminate copyrighted material disclosed as evidence in court proceedings and without risking the right to an effective remedy. Perhaps more importantly, as noted by Advocate General Hogan in his opinion in the case that has been the theme of this article, while the Swedish constitution as well as the Swedish Copyright Act regulates the disclosure of public documents, it does not grant a right to use such copyrighted documents without the consent of the right holder or the support of the exceptions to copyright protection provided by the copyright legislation.

The CJEU’s judgment in Case C‑637/19 clearly covers several significant fundamental rights matters. The judgment can be viewed as part of the trend that we have noticed in the case law of the CJEU in recent years, where copyright has been weighed against fundamental rights (including freedom of information and access to public documents). The Spiegel Online and Funke Medien cases are some examples. In conclusion, though it is hard to say whether Swedish courts have yet fully adapted to this trend, a party to intellectual property infringement litigation should be aware of other fundamental rights, when affected, and be able to argue its case accordingly.