Ip and Art: an International Perspective

• Jurisdiction: European Union
• Citation: Vol. 45 No. 2
• Publication year: 2020
• Author: Cristina Manasse
• topic: Intellectual Property,Copyright law

IP and Art: An International Perspective

Cristina Manasse

Manasse Studio Legale, Milan

James C. Roberts III

Global Capital Law Group PC

COPYRIGHT PROTECTION V. FREEDOM OF EXPRESSION AND INFORMATION? A SWEDISH POLITICIAN IN A STREET BRAWL AND FRENCH HAUTE COUTURE

A case that leads one to online articles about politicians from an ultra conservative political party involved in what has been described as a "street brawl" and accusations of racist and other comments can catch your eye when surveying intellectual property developments. This is one of those cases.

In mid-March, the Supreme Court of Sweden delivered its decision¹ on a case involving the relationship between copyright in a smartphone video, on the one hand, and freedom of expression and information on the other hand. The question submitted to the Court was whether a member of the Swedish Parliament, who both participated in the street brawl and recorded much of it on his smartphone, had the right to compensation from a media company that published edited sequences without his consent.

Apart from the, well, interesting facts, the case once again brings to the fore the tension between copyright and freedom of information, a central right in the European Union.² As it turns out (and perhaps unsurprisingly), its importance does not prevent some limits imposed by the national laws of member states. And in this case, such limits arose from a very specific requirement under Swedish copyright law.

What Happened?

The case is based on some of the facts at the center of what became known as the "Iron Pipe Scandal."³ In 2010 the Swedish politician, Kent Ekeroth, who was the Swedish Democratic Party candidate for Attorney General, was somehow involved in a fight in a street of Stockholm, which included two other party members with him (also elected politicians) and several others. Without getting too involved in salacious details, the street brawl became a scandal because Ekeroth's Swedish Democratic Party was considered an outlier for what some described as its "neo-Nazi" platform, but which quickly gained enough support to have a significant presence in Sweden's Parliament.

For example, in January 2013, the English-language site, Vice, published an article about neo-Nazism in Sweden starting with this sentence:

Last November, the Swedish newspaper Expressen published a leaked video that showed neo-fascist members of Swedish parliament running amok through the streets of Stockholm, wielding pieces of scaffolding pipe and shouting slurs like "Paki" and "little whore" at innocent bystanders.⁴

According to that article, a Swedish-Kurdish comedian named Soran Ismail uploaded video footage of the incident just before the parliamentary elections that year. Eventually, word got out that Ekeroth had also used his smartphone to record a fair amount of video footage. At some point, the video was uploaded to the YouTube channel for the Swedish Democratic Party. A little more than two years after the brawl, the newspaper Expressen published it. One online description says the following:

[Page 32]

Footage from the incident, captured by Ekeroth, shows that Erik Almqvist had told Ismail [the comedian], who is of Kurdish descent, that he "acts like a wog," argues "like a little pussy" and that Sweden is "my country, not yours". He also called a woman "little whore" and a man "blatte [cockroach or "paki"] lover." Ekeroth was also shown to shove a woman into the side of a car, and finally, the three politicians armed themselves with iron pipes from a nearby construction site after receiving a threat from a witness.⁵

Now we come to the publication of the smartphone video footage at the center of the Swedish Supreme Court's opinion. The Swedish equivalent of what can best be described as a public broadcasting channel known as "SVT" posted a longer version on its website, which included scenes that were not in the YouTube channel version. Evidently, SVT also published still photos and snippets of the video. In all cases of posting and publication SVT did not receive Ekeroth's approval. When Ekeroth learned of such uses he sued for compensation for copyright violation.

The News Media Defense of Freedom of Information

SVT fought back. Its lawyer argued that the Swedish Copyrights Act⁶ entitled SVT to use the content of the film, based on Articles 23 and 25, which are provisions that essentially serve as carve-outs for using copyrighted materials for newsworthy events:

Article 23: "Works of fine art which have been made public may be reproduced
1. in connection with the text in a scientific presentation which has not been prepared for commercial purposes,
2. in connection with the text in a critical presentation, except if it is in digital form,
3. in a newspaper and a periodical in connection with a report on

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