Using copyright-protected material as evidence in a court proceeding.

The Swedish Patent and Market Court of Appeal has provided for an interesting ruling (PMFT 2585-17, 2018-01-24) concerning the protection of copyright-protected works when these are used as evidence as a court proceeding.

The  case at hand concerned a text written by J.I., filed as evidence during an appeal concerning custody. M.B. (the mother)  filed a copy of the text as evidence of J.I.:s (the father) inappropriate behavior. The text had not been previously published. The objective was of course to harm the credibility of J.I. by means of the content of the text in question and thereby to succeed in acquiring the custody of their son. The custody proceedings took place behind closed doors.

J.I. sued for copyright infringement on three grounds, the distribution of the text, its reproduction and its communication to the public.

Is the work copyright-protected?

The ruling of the Court starts with considering whether the text is  copyright protected work,  concluding that it fulfills the originality requirement.

Reproduction

Equally uncomplicated is the ruling of the court with respect to the reproduction of the work. M.B. has  filed the text  with  the court and that means that a copy of the text had been produced.

Available to the public

testing the limits of copyright may be exhausting...

According to the Court, the central question is whether M.B.’s act of sending the text to a court constitutes a communication to the public (under 2 § of the Swedish Copyright Act). In this respect, the Court considers first whether the act of M.B., in filing the text,  constitutes distribution of the work, concluding  that distribution requires physical copies. In the case at hand, M.B. had emailed the text to the Court, and thus no distribution of the protected work has taken place.

The fact that M.B. sent the text to the Court via email is enough for a communication to have been made The important question that remains is whether the Court is “the public” from a copyright law perspective. The Court refers to the well-establish case-law of the EU Court of Justice (Reha Training, C-117/15, EU:C:2016:379) with respect to the definition of the term “public”. Although in the Swedish legal system  the scope for requesting public documents from authorities and courts is broad, the Court concluded that the court in the case of M.B. is not to be considered equivalent to the “public”.

As such, the only the act of infringement would seem to be unauthorized reproduction. M.B. argued, however, that since the text was used as evidence in a court proceeding, use of the work could not constitute copyright infringement. There is no explicit provision in  this regard under the Swedish Copyright Act, the  closest exception  being  section 26 (b) of the Swedish Copyright Act  which provides  that the reproduction of a copyright protected work does not constitutes infringement if it is proceeded for the needs of the administration of justice.

However, the  Court refers to the EU Court of Justice ruling in Painer (C-145/10, EU:C:2011:798) according to which a person  may  make use of this exception, it being reserved only f for persons involved in the administration of justice (e.g., prosecutor or police ).  Accordingly, the Court ruled that neither section 26(b) nor any other exception under the Swedish Copyright Act is applicable in the specific case.

The Court ruled  that J.I. was not entitled to damages, taking into consideration that the sole interest of M.B. was to provide evidence in  a court proceeding. As such, M.B. had no commercial interest in the reproduction of the copyright protected work. Furthermore, J.I was not able to show that he had suffered any other damage or injury as a result of the infringing reproduction. Naturally, damages related to the court proceeding, during which the reproduced text was used as evidence, were not taken into consideration in this ruling, since these relate to J.I..s possible non-copyright protectable interests.