Artists’ rights ./. Freedom of panorama

In Insights, Uncategorized

11 April, 2016

Wikimedia Sverige has compiled images of art in public places in a database. This database is open to all, free of charge and is intended for the general public, the educational system and tourism. The project was in fact financially supported by Vinnova, a governmentally owned organization for supporting innovation and business development in Sweden.

Bildupphovsrätt i Sverige ek. för. (BUS) is a Swedish organization for collecting copyright remuneration for artists. In 2014 BUS sued Wikimedia before the District Court of Stockholm for copyright infringement concerning three works of art (all sculptures that are part of the database of Wikimedia). The District Court decided to refer the case to the Supreme Court to clarify §24 of the Swedish Copyright Act, namely the meaning of the word “image”. The paragraph reads:

  • Works of fine art may be imaged in pictorial form
  1. if they are permanently located outdoors on, or at, a public place
  2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale or
  3. if they form part of a collection, in catalogues, however not in digital form.

In addition, the District Court requested clarification on whether it matters if the intent is commercial or non-commercial.

In order to interpret the scope of §24, the Supreme Court applied the “three-step test” in Article 5(5) of the InfoSoc Directive, meaning that an exception to the copyright should 1) only be allowed in certain special cases 2) which do not conflict with a normal exploitation of the work or other subject-matter and 3) do not unreasonably prejudice the legitimate interest of the right-holder.

Here the Court found that, for an exception to the copyright to be possible, it should be a clear and precise exception. As for the normal exploitation of the work, the exception must not compete with the artist right to exploit the work of art financially, also considering new technical possibilities. Finally, the restriction should not be an unfair limitation of the artist’s legal interests. Here, a consideration should be made against the interest of the general public.

§24 was introduced as a result of the need of the general public to freely image the surroundings in a city or a landscape. Here, the word “image” was meant to mean paint, draw, photograph or use other techniques in order to show the work of art two-dimensional. Apparently, Wikimedia referred to the fact that in Sweden, works of art in a public place may be part of, or the main focus of, a post card without any need to compensate the artist. However, according to the Supreme Court, this position was originally for practical reasons and since the compensation from the artist’s perspective was of minor economical importance. Therefore, the fact that public works of art is allowed in postcards is of no relevance in this matter.

The Supreme Court pointed out that a use of a work of art in an open database typically is of considerable financial value, either for the database owner or for others who use the database. This value should be the property of the artist. A database of this kind provides for a substantial use of copyright protected works of art without any compensation being paid to the artists. Hence, it is a far more serious restriction of their sole rights than §24 is intended for. The right to use new techniques to exploit a work of art in this way remains with the artist.

The Supreme Court replied to the District Court of Stockholm that §24 only grants the imaging of the work of art. It does not include a right to make the images available to the general public via Internet. Whether or not there is a commercial intent is not relevant.

Some regret the decision with reference to a wish that art in public places should be easy accessible to as many as possible.  As always, there is the complaint that the legal world is at least one step behind the swift technical development of society.

However, the decision is important to the artists and makes it clear that they are in control of their works, not the Internet companies.

Kristina Fredlund, European Trademark Attorney

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