Copyright infringement in the ”iron pipes film” case

The latest copyright  decision of the Swedish Patent and Market Court of Appeal,  given on   15 July 2019 (PMT 14029-16),  concerns the use of a film (recorded through a  mobile phone) as well as the use of photos extracted from the film sequence by a TV channel. The issue at hand addressed  whether the use of previously unpublished (from a copyright perspective)  film sequences constitute copyright infringement, or whether copyright limitations (such as news reporting or parody), are otherwise applicable. 

The film in question (called the “iron pipes” film) showed three leading politicians of the Swedish Democrats party entering into a fight and using racist and sexist language  against a heavily intoxicated man as well as against passers-by. The film was recorded by one of the three politicians (K.E.), part of which was  published with the author’s consent in the official Youtube channel of the party.  

The interest in this  film was understandable, taking into account the role of the participants from the Swedish Democrats and  that the film was recorded just a few months before the 2010 national elections. Parts of the same film were used by the state television channel (SVT) both for  news reporting  and parody. However, the film sequences used by the SVT were not the ones made available to the public by the author or  with  his consent.

 K.E. sued SVT for copyright infringement. The SVT had used sequences of that iron pipes film (which  had had been made available to the public  on   the homepage of the newspaper Expressen, but without the authorization of the author)  to  made copies, but omitted to identify K.E. as the author.

 According to the  Court, the film sequences and the photos considered in this case had not been made available to the public from a copyright-law perspective, since they  had  not made available by the author (or  with  his authorization).

 The Court then considered  the possible applicability of two copyright limitations. First,  it considered 23 § 1 3st of the Copyright Act concerning news reporting by newspapers and magazines,  concluding that one of the most important criteria for the application of this  limitation, namely the fact that photos need to have previously been made available to the public, was not fulfilled. The Court reached the same conclusion concerning    25 § Copyright Act, relating to the use of films in TV news reporting (and on svt.se).

 To the contrary, the Patent and Market Court of Appeal held that the use of these sequences for the purposes of parody were covered by the parody exception and thus this use did not constitute infringement of K.E’s neighboring rights.

 The ruling of the Patent and Market Court of Appeal affirms that of the Patent and Market Court, although on different grounds. The Court provides an extensive discussion concerning the conformity of the Swedish law with the Infosoc Directive (Official Journal L 167 , 22/06/2001 P. 0010 – 0019)  in particular with regard to the concept of parody. Article 5.3 (k) of the Infosoc Directive gives Member States the flexibility to introduce an exception for use for the purpose of caricature, parody or pastiche.

 Although Sweden  did  not, during the implementation of the Infosoc Directive, choose to introduce an explicit parody exception, Swedish copyright law  had  already included a parody exception as developed in the case law of the Supreme Court. The Court provides for an explanation why the legislator was silent in this respect during the implementation of the Directive. Thus, according to  Swedish case law, parody is in itself an independent work, which means that there is no need for limitations or exceptions to a third party’s copyright.

  However, according to the Court, the Swedish approach, providing that parody is an independent work under copyright, could raise concerns as to its conformity with EU law. According to the case law of the CJEU (see Deckmyn C-201/13 para 33), parody has to  evoke an existing work yet  be noticeably different from it, while constituting  an expression of humor or mockery.

 On the other hand, according to Deckmyn, parody does not have to  mock the copyrighted work (indeed, the copyrighted work may be “appropriated” to mock something else); it does not itself constitute an original work of art; nor does  it have to be attributed to someone else than the author of the copyrighted work or  mention the source of the parodied work.

Giving a close look to use of copyrighted material

 The Court concludes that the use of the film at hand is a parody since the SVT film (with the music and text added) is significantly different from the K.E. film. At the same time, the Court clarifies that the pre-Infosoc parody principle, requiring the originality of the parody in order for the exception to be applicable, should not be employed since it is not in conformity with the Directive.

 As for  the argument that  the right to  freedom of expression of SVT trumped  the intellectual property rights,   this claim was rejected.  The Court recognized the importance of informing the public of the acts of politicians (in particular when such acts occur just before national elections are set to take place).At the same time, however the Court noted that nothing would  have prevented  SVT from informing of the specific incident without  using the film or the actual photos in question.

With regards to the infringement of K.E.'s moral rights, the Court concludes that in connection with the film, 3 § of the Copyright Act ( providing for moral rights) is not applicable.  To the contrary,  pursuant to 49 § of the Copyright Act, photographs  enjoy moral rights protection; as  such,  K.E’s moral rights  have been violated.

 The Court  stated, taking into consideration the importance of the legal issue of this case, that an appeal to the Supreme Court would be possible. Indeed,  the  SVT has already  noted  that the decision will so be  appealed.