Gränsdragningen mellan yttrandefriheten och upphovsrätten : Med utgångspunkt i Högsta domstolens avgörande Mobilfilmen

This paper will discuss the balance between freedom of expression and copyright established by the Swedish Supreme Court judgment NJA 2020 s. 293, with an emphasis on its relation to EU law. The case concerns the publication of a video filmed by a Member of Parliament (MP), who is heard expressing racist and sexist remarks, by a news outlet. The MP sued for copyright infringement, arguing that the news outlet did not have the right to publish a video filmed by the MP without his approval. The news outlet disagreed by claiming that the video was of public interest. The Supreme Court sided with the MP on the basis that the Swedish Copyright Law (23 §) prescribes that the media is only allowed to publish works of public interest without the right holder’s approval if the work is already public, and the video in question had not been made fully public prior to publication. However, through an analysis of the legislative process resulting in the Swedish Copyright Law (23 §), and associated case law, this paper will question if the legal requisite for a work to be public is merited. Firstly, the Swedish Copyright Law (23 §) was meant to transpose the exceptions to copyright expressed in article 5.3.c of the Infosoc-directive. Yet the Infosoc-directive does not include requisite for a work to be public, and the ECJ has found that member states are not allowed to implement other elements to the exceptions than those mentioned in the directive. Despite this, Sweden considered the Swedish Copyright Law (23 §) to transpose article 5.3.c of the Infosoc-directive. Thereby contradicting the meaning of the directive and established precedence of the ECJ. Moreover, member states are obliged to make sure that the implementations of a directive is compatible with the European Charter of the Fundamental Rights, which may not have been adequately considered in the transposition. Consequently, the Swedish Copyright Law (23 §), which was the basis for the court’s judgment, is likely an incorrect transposition of article 5.3.c of the Infosoc-directive and, in relation between the state and individuals, may contradict the European Charter of the Fundamental Rights provisions on freedom of expression. The implication of an incorrect transposition is that the purpose of the directive, rather than the wording of the law, should take precedence, challenging the legal requisite for a work to be public in order for publication in the public interest established by the court in NJA 2020 s. 293