Lagförslag | Sverige | 7/11/2019
Trial by combat is futile without Excalibur.
They say that the battle has been lost. But in the spring it is possible to count 136 different kinds of weather inside of 24 hours. It is a time during which a bear wakes up from a long silent hibernation away from the dissonance of sounds (for example 1, 2, 3), only to suddenly grab a red jar of honey to gain strength and try to catch the Wolf that has been lurking in the woods. The Wolf is said to be a nice guy, but everybody knows that he is a world champion of cruelty.
Except the last season of Game of Thrones and the adoption of the DSM Directive, spring 2019 marked another important event. On June 1st 20 years ago in 1999, the dawn of what many referred to as the information superhighway, the spring equinox of digital copyright that would relieve us of market fragmentation, technological constrains, and forever change our content consumption pattern and how we interact on the web, the initially rejected grandfather of iTunes, Spotify, and Web 2.0, the subsequent prodigal son, was presented to the world – Napster. A portal to a world of exchanges in which demand could finally meet supply without expensive CD-ROM drives and unreliable ripping software. A gateway to free global market information on music preferences. It was a platform that presumed cross-border access, and needed no incentive for its realisation.
Most of that era is gone and the new frontier are the new-fangled intermediaries, the new Napsters, protectors of the prosumer realm, and now also Judge Dredd in disguise.
Article 17 of the adopted DSM Directive requires that so-called online content-sharing service providers either negotiate use licenses or enforce copyright ex-ante by preventing uploads. At the same time, according to Article 17(7) paragraph 2 Member States must ensure that users are able to rely on certain existing limitations and exceptions. Among them, the funniest, and shortest, of them all – the parody provision in Article 5(3)(k) InfoSoc Directive; the Excalibur of freedom of expression in European copyright law, of which not every knight of humour may be worthy (Deckmyn, paras 28-31).
Is there anything that the Kingdom of Sweden ought to do to protect its sense of humour on the internet?
Harmonisation of limitations through the principle of one-size-fits-no one
Article 5 InfoSoc Directive has the ambitious goal to – at least to some extent – harmonise copyright limitations across the European Union. It is mostly a discretionary framework allowing cherry-picking and whose harmonisation effect has been questioned by many, inspiring one commentator to attempt mathematics to determine the amount of different implementation possibilities.
Similarly, the parody provision provides of itself various opportunities for implementation. It may become a limitation or exception (for one, somewhat vague, version of the difference see VG Wort paras 33-38) to the exclusive rights, of reproduction, communication to the public, or both, as well as distribution to facilitate other limitations or exceptions; it need not, but may, be subject to fair compensation (InfoSoc Directive, recital 36), and, arguably, may concern parodies, caricatures or pastiches, or any combination thereof. In this way Article 5(3)(k) reflects alone the core of Article 5 InfoSoc Directive explained in recital 32 of respecting the different traditions of the Member States, thereby allowing them to tailor the provision to the national sense of humour.
Allowing humour in Swedish copyright law
As pointed out, Sweden has not implemented Article 5(3)(k). It has legitimately exercised its discretion not to implement the provision. For this reason, as the catalogue of limitations/restrictions (sv. inskränkningar) in Chapter 2 (11 - 26h §§) of the Copyright Act (URL) does not contain any provision that removes parodies from the exclusive space reserved for rightholders, the obligation in Article 17(7) paragraph 2 (b) DSM Directive will appear not to concern Sweden for that type of content (unless of course the obligation of Member States to ensure that users may rely on a parody exception or limitation actually makes the implementation of the discretionary Article 5(3)(k) mandatory). Therefore, a potential tension between fulfilling the duty to prevent uploads and benefiting from an act excluded from exclusivity does not arise as a matter of law since the law does not envisage such an act. That paragraph 1 of Article 17(7) also mandates that the cooperation between online content-sharing service providers and rightholders should not prevent the availability of content which does not infringe copyright, the peculiar situation in Sweden (described below) appears to also be covered, requiring therefore no legislative intervention in this respect. Hence there is no problem for the subsistence of humour in the realm. Or so it may seem.
Although an express limitation is absent, of course neither the Swedish legislator nor the courts are strangers to parodies. For parodies not to infringe the exclusive rights, or simply not be contingent upon an interest of the original rightholder, they must fall under 4 § second paragraph URL. This provision makes it clear that “If a person, in free connection to another work, has created a new and independent work, their copyright shall not be subject to the right in the original work”.
The traditional understanding is that parodies fall within this provision since the purpose of the parody provides new and independent content (expression). Yet, allowing parodies on the basis of that provision only works when the parody is noticeably different from the original work to such an extent that it is more than merely a transformative creation falling within the ambit of 4 § first paragraph URL (in which case it is instead contingent upon the rights in the original work). For that to happen a parody must thus become a work in its own right. The use of the phrase ‘new and independent work’ in the provision hints alone such an outcome, although the independent status of the creator’s (parodist’s) copyright presumes, of course, that such a right as come into existence in the first place following the act of creation.
As such, parodies must as a starting point be original, and, as we learn, the author’s own intellectual creation (Infopaq paras 36-37), reflecting the author’s personality (Painer, para 88), for which, at least in so far as photographs are concerned, no other criteria can apply (Term Directive, Article 6). This constrains the acceptable level of humour in the realm to the level of seriousness of expression required of creators who wish to have their creations protected by copyright, and therefore demands effort even by the humble knights of the Order of Mimeme.
Harmonising the logic of copyright law
With the increasing Europeanisation of copyright law the structure and contents of national copyright laws need to embrace the logic of the European legislator. Sometimes this may be perceived as a trojan horse, sometimes as Ptolemean fire warming the bastions of freedom and illuminating darkness when winter has come. For now, in the absence of a truly uniform European copyright law, that legislator attempts to safeguard a fair balance of [constantly increasing] interests (making this objective clear in the, at times lesser known, recital 31 InfoSoc Directive), primarily through the system of limitations and exceptions. Requiring the Member States to ensure that the essence of Article 17 DSM Directive is without effect on limitations and exceptions constitutes an invitation to an express transposition of the parody provision to allow humour in the Kingdom. Whatever 4 § second paragraph URL is said to “allow”, it seems it cannot be parodies within the meaning of European Union copyright legislation because a parody, and necessarily caricature and pastiche, has indeed become a legal technical, autonomous, term, expected to be used uniformly in the Union (Deckmyn, paras 14-17), and for which room has been specifically made in the structures of Article 5 InfoSoc Directive without any requirement as to its originality, nor, it seems, even novelty or independence (paras 21, 24, 33).
If there truly is a bastion of freedom of expression in Sweden, then it must always remain grander than the replica of Article 17 that we have been told to build in the Kingdom. In the harmonised European copyright framework that we have today, this can only be achieved for parodies by implementing Article 5(3)(k) in the catalogue of limitations. Otherwise the Church of Copyright (and indeed the brethren and sistren of the Missionary Church of Kopimism) may be ripped of an important asset in the realm of increasingly algorithmic governance. It is easier for European Judge Dredd to observe a catalogue of enumerated limitations and exceptions to exclusivity than to delve into national copyright intricacies and ponder about whether an evidently similar object is a new, independent work, reflecting a potentially anonymous author’s own personality. The complexity, and uncertainty, of such an exercise may alone disincentivise serving justice in the form of authorising an upload where it is warranted, or in the alternative require the clearance of copyright to an object in which the presumed rightholder holds no title. The Supreme Court’s recent ruling in the non-parodical Swedish scapegoats provides just the right illustration of the complexity, or perhaps unpredictability, of 4 § second paragraph URL (see here for the, as determined by the Court, copyright-protected photograph, and the copyright-protected painting falling within 4 § second paragraph).
The implementation work on the DSM Directive has commenced in Sweden. This provides an opportunity (and obligation following Articles 3-6) to revise the existing catalogue of limitations in Chapter 2 URL and introduce a parody provision in Swedish copyright law. Not seizing the opportunity may become a journey back in time to late spring of 1527 when the process of confiscation of church property in the Kingdom was initiated by the King in - of all places! - Västerås (pron. vɛstɛrˈoːs).
In the new realm, trial by combat is futile without Excalibur.