The Swedish Supreme Court has in a decision on 4 April 2016 ruled whether a communication to the public from an open database of photographs of public works of art can fall under copyright limitations for reproductions of public works of art. The relevance of the three-step test when interpreting limitations is also addressed. The decision has important implications for visual artists in Sweden and may well prove to be of interest to other jurisdictions as well.
In the case, the Visual Copyright Society in Sweden (“BUS”) had initiated an action before the Stockholm District Court (case no T 8448-14) against Wikimedia Sweden for copyright infringement. Wikimedia Sweden had displayed photographs of public works of art, such as famous Swedish sculptures, on an open database. The database was freely accessible to the public on the internet without cost.
BUS argued that such use of photographs of public works of art was a communication to the public and that such use would thus only be permissible with the consent of the authors. Wikimedia Sweden relied, on the other hand, on Ch. 2, Sec. 24 first paragraph 1 of the Swedish Copyright Act, which lays down a copyright limitation for reproductions of public works of art. The said provision reads as follows: “Works of fine art may be reproduced in pictorial form […] if they are permanently located outdoors on, or at, a public place […].”
The Swedish Supreme Court’s decision
The case was referred to the Swedish Supreme Court (case no Ö 849-15), which began its analysis by confirming that limitations to copyright are to be interpreted strictly. Limitations are also to be interpreted in light of the three-step test in Article 5.5 of the InfoSoc Directive. Thus, a limitation must first be clearly defined and precise. It must also not conflict with the normal exploitation of the work belonging to the author, including any such exploitation made possible by technological advancements. Furthermore, in assessing the notion of “unreasonably prejudice the legitimate interests of the rightholder” a proportionality test should be applied of whether the limitation to the exclusive rights can be justified by a stronger public interest.
The three-step test shall be taken into account when adopting national legislation. This fact also meant, according to the Supreme Court, an instruction for national courts to apply the three-step test when interpreting provisions of copyright limitations.
The Supreme Court next considered the interpretation of Ch. 2, Sec. 24 first paragraph 1 of the Swedish Copyright Act. The term “reproduce” means reproduction in paintings, drawings, photography or other known technology by which the works of art may be reproduced in two dimensions. Such reproduction is thus permissible under Swedish copyright law and entails a more narrow limitation than allowed under Article 5.3 (h) of the InfoSoc Directive.
In applying the three-step test to the said limitation, the Supreme Court recognized the exclusive rights for the author to economically exploit his or her work. Whereas distribution of e.g. postcards of public works of art have been considered as permissible under Swedish copyright law (since, inter alia, this involves a relatively limited distribution of analog reproductions), the same could not be said for works of art used in a digital environment. Making works of art available to the public by means of an open database was assumed, according to the Supreme Court, to have a commercial value that is not insignificant. This commercial value shall be reserved to the authors. It was thus not seen as relevant whether or not the database has a commercial intent.
Lastly, the Supreme Court considered whether a communication to the public from a database such as Wikimedia Sweden’s unreasonably prejudiced the legitimate interests of the rightholders. Wikimedia Sweden’s open database was considered to amount to a “public interest” in that assessment. However, the open database allowed a wide use of copyright protected works without any compensation being paid to the authors. Using works of art in such a database therefore constituted a limitation that was considerably wider than originally intended under the applicable provision.
The Supreme Court thus concluded that Wikimedia Sweden’s use of photographs of public works of art in its open database constituted a communication to the public that did not fall under any applicable limitations.
The Swedish Supreme Court’s decision marks an important step for visual artists in securing copyright protection online, where a single reproduction can be accessed to a limitless and uncontrolled extent.
The decision should not be interpreted as to prohibit any use online of photographs of public works of art, which would necessitate a different analysis. The Supreme Court only dealt with the question of such use by means of an open database, freely accessible to the public without cost. It remains to be seen whether similar cases will follow in other jurisdictions where similar statutory copyright limitations for reproduction of public works of art exist.
Whether the three-step test in the InfoSoc Directive is addressed to national legislatures or also national courts has been subject to intense discussions. A legal analysis of such debate or of indications made by the European Court of Justice on the matter (e.g. Case C-5/08, Infopaq International A/S  ECLI:EU:C:2009:465, p. 58) is lacking in the Supreme Court’s decision. It should be recalled in this context that the three-step test is not intended either to affect the substantive content or to extend the scope of the different exceptions and limitations provided for in the InfoSoc Directive (Case C-435/12, ACI Adam  ECLI:EU:C:2014:254, p. 26). Thus, the introduction of the three-step test in national courts should provide a flexibility in interpreting copyright limitations in the strict sense, i.e. their scope may be limited but not extended. Such flexibility would in practice be for the benefit of rightholders than of possible infringers.