Sweden 22 Apr 2021

First ruling decided on protection of national classics – Swedish Academy against NMR

After almost 60 years that the Swedish copyright act on national classics has existed, the first ruling has now been decided; the Swedish neo-nazi organization The Nordic Resistance Movement (NMR) has not committed copyright infringement by publishing poems by Swedish well-known authors such as von Heidenstam, Rydberg and Tegnér, the Patent and Market Court states.

The dispute began at the end of 2019 when the Swedish Academy, who awards the Nobel Prize in literature, brought an action against NMR’s website Nordfront that had published excerpts of poems by the above authors. According to the Swedish Academy, some of the other material was criminal or at least expressed the devaluation and violation of ethnic groups. The works had therefore, according to the Swedish Academy, been used in a foreign and offensive context. The Swedish Academy requested that the use of the literary works be banned on the basis of the Copyright Act’s provision on classic protection.

In Sweden, creative works are covered by copyright during the lifetime of the creator and up to 70 years after his or her death. When the copyright has expired, it is generally free for anyone to use the material. An exception to this rule is the so-called “protection of classics” that protects older Swedish classical works from public reproductions that violate “the interests of spiritual cultivation”. This extended protection only applies to use that is considered grossly offensive to both the creator as well as the public.

The other party raised a number of oppositions to the Swedish Academy’s action. They claimed, among other things, that the reproductions were not covered by the protection of the classics because the literary works had not been altered or distorted.

The crucial question in the case became whether the classic protection is applicable when a work – without having been edited or in any form altered – has been reproduced in an offensive context.

The court made its assessment based on preparatory legislation from the late 1950s (the act was added in 1960). The interpretation of the preparatory statements is to some extent complicated by the fact that they are written for another time but adds that such an extensive interpretation as the Swedish Academy advocated could have certain consequences for freedom of expression and the press, confirms Tomas Norström, judge and one of the members of the court.

The Patent and Market Court thus makes the assessment that the classic protection is only applicable when a work has been subjected to changes. According to the court, there is nothing to suggest that the classic protection is intended to cover the situation that a work is reproduced in an unchanged condition, but in a context that appears offensive. The Swedish Academy’s injunction has therefore been dismissed. Everyone is therefore free to use the work in any form and in any way.

According to the ruling, the Swedish Academy is obliged to pay legal costs totaling approximately SEK 1.5 million to NMR and Nordfront.

-Judicial practice is required to get a better idea of ​​how such disputes should be settled, says Sanna Wolk, Swedish professor of intellectual property law at Uppsala University, in an earlier statement on Swedish National Radio.

The Swedish Academy, who awards the Nobel Prize in literature, is one of three Swedish institutions that may take legal actions to protect classic works based on this extension of copyright (The Musical Academy and The Art Academy are the other two).

The decision can be appealed.

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