Copyright directive series – a closer look at Sweden
The incorporation process
The CDSM directive caused great controversy in Sweden when it was adopted in 2019. In a country that has pioneered internet use and digitization, articles 15 and 17 on related rights for press publishers and new obligations for online sharing were met with great dissatisfaction. In the end, Sweden was one of the few EU countries that voted no to the CDSM in the European Council.
As a way to mitigate the potentially negative effects of these articles, the Swedish government chose a comprehensive and inclusive implementation process. About a hundred stakeholders were invited to provide input, article by article, to feed into the government’s proposal. However, the majority of stakeholders were either collective management organizations (CMOs) or online sharing services. To better balance the process, Wikimedia Sweden and some others created a network of stakeholders representing cultural heritage and research institutions as well as internet users. This was an important way to build common knowledge and increase the impact of legislation, paving the way for – among other things – a major win on Article 14, often referred to as “the protection of the public domain”.
Text and Data Mining (TDM)
The new TDM exception in Sweden is closely aligned with the directive and opens up new opportunities for the public, as well as research and cultural heritage institutions, to make reproductions and extracts for text and data mining. In addition to what the directive requires, the Swedish implementation also allows TDM to be carried out on ‘photographic images’, i.e. images that do not meet the threshold for originality, but are protected via a related right in Swedish copyright legislation. The implementation also clarifies that heritage and research institutions that are integral parts of other facilities (in a broad sense) should be able to carry out TDM under these exemptions.
Conservation of cultural heritage
The updated point 16 brings some huge changes. Where previously only public archives and libraries were allowed to copy any type of work in their permanent collections for preservation purposes, that exemption has now been extended to include all cultural heritage institutions. These are defined as public libraries and museums, archives and institutions dedicated to cultural heritage related to moving image and sound. It is expressly stated that this exception overrides any agreement that states otherwise. The updated section even includes computer programs previously excluded from copying for preservation purposes.
However, it is still only national and municipal archives and certain public and research libraries that are allowed to make copies of copyrighted works (except computer programs) for other reasons (e.g. research purposes).
Digital and cross-border teaching activities
Extended collective licenses (ECL) have a strong presence in Swedish copyright law, unlike many other EU member states. This system gives CMOs an “extended” representational “power”: CMOs can grant licenses for works not in their repertoire and authors they do not represent, in certain contexts. Those who want to make works available to the public but whose rights would otherwise be difficult to clear can turn to the CMO.
Article 5 of the Directive creates an exception to the use of copyrighted material for educational purposes without permission, and expressly recognizes the possibility for these activities to take place across borders, including (implicitly) through digital or physical means. It is introduced as paragraph 13, but the second paragraph states that the exemption does not apply if there is a license readily available on the market that allows these uses. As the Swedish licensing market is well developed, there will likely only be a few cases where the exception is applicable.
While the system may be efficient and easy for those who can afford to pay, it makes it difficult for the less wealthy to access and distribute knowledge. Due to the existence of the ECL, some of the exemptions and limitations set out in the CDSM Directive, particularly in relation to education, are likely to have little effect in practice.
Out of commerce works
In the Swedish transposition of the CDSM, cultural heritage institutions are allowed to make copies of non-commercial works and publish them if there is no CMO representative for relevant rights holders; if the material is published on a non-commercial website; if it is used for non-commercial purposes and if the names of potential rights holders are provided.
If such a CMO exists, a new type of license for foreign works can be applied. This license covers any kind of access and use of non-commercial works in the collections of cultural heritage institutions, while the exception covers only the publication of the works in question. In both sections it is clearly stated that rights holders can opt out of publication of their works.
As required by Article 10 of the Directive, cultural heritage institutions making use of the non-commercial works exception must publish information about the works on a platform managed by the EUIPO. Interestingly, the Swedish government emphasizes that this should not be seen as a requirement to publish or use the works in question. They claim that it cannot be considered reasonable to share information about every single work that is used or to be used on the portal. They therefore do not see sharing information about the use of out-of-commerce works on EUIPO’s platform as a requirement for the use of out-of-commerce works within the described exceptions. Furthermore, they believe that it should not automatically be the responsibility of the cultural heritage institution to update the portal; instead, this task should be carried out by a joint organization of the market.
In the proposal, the Swedish government also points out that the exception for works that are not available in the trade should even include photographic images and that a work could indeed be defined as out of trade even if it is physically available for lending at a library. As regards the sufficient representativeness for a CMO, the rules remained unchanged – the organization needs to represent several rights holders of works from the current category that are in use in Sweden.
The public
Article 14 of the directive is implemented as an exception to paragraph 49a, a related right in Swedish copyright law that provides protection for photographic images for 50 years. The new exception means that this related right is not applicable if the main motif of the image is a work of art that is no longer covered by copyright. The new exception has great potential for digitization and digital dissemination of Swedish cultural heritage, especially since it has been a fairly common practice to place restrictive Creative Commons licenses on digitized public domain material.
In the new legal text, the word “artwork” is chosen, the literal translation of which would be “artwork”, which is somewhat broader than “visual artwork” in the directive. The wider implementation opens up wider and more inclusive digitization methods, where art types in the gray zone between ‘visual artwork’ and ‘artwork’ are now safely included, such as folk art, textile art, crafts, glassblowing, engravings and possibly. old manuscripts with both text and images, as well as typography in fracture style.
Due to the legal construction as an exception to paragraph 49a (the related right of two-dimensional images), it is unclear whether 3D digitization methods are also covered.
Find out more
You can read more about the incorporation of the CDSM directive in Sweden from Swedish Parliament, the Swedish government and The Swedish Media Council (all in Swedish).
If you want to learn more about copyright and digital heritage, join the Europeana Copyright Community and read our CDSM Directive Pro news series.