Copyright
University colleges and universities are to a great extent affected by copyright regulations. The individual researcher’s right as originator to decide about his own work is one of the corner pillars of the legislation. At the same time, these rights should be balanced against the public’s wish to take part of the research results. Here we will go through existing rights and restrictions.
Background
Copyright can be traced back to the 15th century. Johann Gutenberg’s invention made it possible to multiply documents. Consequentially, several states issued particular printing privileges. Not mainly in order to protect the originator, but more to censor and control printed material. During the 17th and 18th centuries this system could not be maintained and in 1710 came what was to be considered the first copyright regulation in the shape of the British Act of Anne. This act gave the originator the right to decide about his work, but it was only valid in Britain. The 1886 Bern Convention regulated this by protecting literary and artistic works in those European countries that adhered to the convention. Sweden became a member in 1904. More than 147 countries are members today and the Bern Convention is therefore the most important international convention on copyright.
The current law in Sweden is the law (1960:729) about copyright for literary and artistic work. The copyright law is also included in the Swedish constitution, 2nd chapter, §19. The Instrument of Government. During the last years Swedish legislation has been adapted to a number of directives from the EU. Through the EU directive 2001:29 it became necessary to revise Swedish copyright law more thoroughly. An investigation titled Ds 2003:35 Upphovsrätten i informationssamhället was completed and the Riksdag, the parliament, came to a decision that the new regulations should be valid from July 1st 2005.
How is a work protected?
A work is protected automatically as soon as it is created. The point of origin is thus the moment of creation, which normally should be easy to establish. Instead the problem is defining what a work is and the law does not define any criteria for this. Nevertheless it is stated in §1 of the copyright law which categories of works may exist. Examples of such categories are spoken and written language, numbers, stenography and the Morse, digital signs in the shape of CD-ROM, databases, web pages, computer programs, films, photographs, etc. For certain types of works copyright is not valid though. Examples of such are statutes, authority resolutions, statements from Swedish authorities etc. The originator is the person or persons who created the work and thus does not belong to one or several physical persons. Copyright therefore does not apply to institutions or companies but only the person who created the work. A protected work should be the result of an individual intellectual creative process, have “verkshöjd” which means it has a certain intellectual quality, and have a special design. For example an idea can be copyright protected, or short news items which really only convey facts.”Verkshöjd” means the originality of the work. As an example of this it is usually pointed out that a work could not have been created by two people independent of each other. The copyright period of protection is valid from the day the work was created until 70 years after the death of the originator and for 50 years for photographs without “verkshöjd”.
The meaning of the protection – economic and non-profit rights
In the law, two main types of rights are treated, economic and non-profit. According to economic rights the originator has the right to dispose of her work. She has exclusive right to produce copies of the work (right of duplication) and make it publicly accessible. She can also transfer economic rights to someone else at a charge. The economic compensation is determined based on what is agreed between the parties. A work is considered to be made publicly accessible when the work is transferred to the public. It can be transferred with or without technical aids. A common case is when a document is published on the Internet, i.e. when a work is made accessible at a distance from a user who can decide when and where she is to take part of it. The other form concerns the public performance of a work. It can for example be a play which is performed in front of an audience or a film which is broadcasted on TV etc., thus with or without the use of technology. The third form addresses the case when examples of the work are shown in public. It is made accessible without technical aids and in a place where the public can take part of the work, e.g. an art exhibition.
The fourth and last form speaks of the case when examples of the work are offered for sale, renting or lending or otherwise spread to the public. It is often associated with the sale of books or other printed works. For example it is not applicable for digital documents spread over the Internet. Non-profit-making right gives the originator the right to be named at the use of his work and this is called “namngivelserätten” (which translates to the right to be mentioned by name.) Even if this does not necessarily have any economical consequences the originator’s name should always be stated. People often fail to do this, e.g. when they use photographs. A work may also not be altered so that the originator’s literary or artistic reputation is violated or in any way made accessible for the public in such a way that the originator is violated, which is called “respekträtten” (an approximate translation is the right to be respected).
Unlike economical rights, non-profit-making rights can not be transferred, other than concerning to nature and extent limited use of the work. Non-profit-making rights are based on the copyright law §3. Legal cases such as NJA 1974, p. 94 and NJA 1975, p. 679 illustrate this. An interesting current case about the violation of “respekträtten” is the civil case between Claes Eriksson/Vilgot Sjöman and TV 4. In the district court sentence it was pointed out that this had been violated when TV4 interrupted their movies with commercials.
Copyright restrictions
The legislators’ ambition with copyright is that the originator’s rights should be balanced against the public’s interest in gaining access to copyright protected work. The law describes those cases when use of a work is permitted without the consent of the originator. As is described above the protection of a work ceases to apply 70 years after the originator’s death. There are some restrictions though through the so called “classic’s protection”. According to this works can not be rendered in a manner that violates the interest of intellectual property. Copyright restrictions are regulated in the second chapter of the law.
Copying
According to §12 of the law, each person has the right to produce one or a few copies for private use of works that have been made public. How many copies you can make is not established exactly. But considerably fewer than what was allowed before the new law was taken, when single copies could mean up to ten copies.
Now the limit is one or a few copies, but it is not a definite limit. It can be fewer depending on what kind of work it concerns, for example an illustrated work. Where the line should be drawn has to be determined in legal usage. Also, the production of copies must only be of limited parts of a work. Copying whole books is thus forbidden today. Only parts of a work may be copied. Copies from e.g. course literature can thus only comprise limited parts of a book, for example a chapter or some other limitation. The same rule applies regardless of whether it is a printed book or the corresponding digital edition. It does not matter how the copying is done, i.e. whether it is done with an ordinary copy-machine, a scanner, to a CD-ROM etc. If however you print a document e.g. from the Internet the original should be permissible, i.e. the original should be published with the originator’s consent. Of course it may be difficult to know whether it is permissible or not, but if you did not know or should have known that the original was permissible, no penalty or damages are sentenced. One should be careful about documents from the Internet though, because a great deal of material there has been published without the originator’s consent. Copying must not be done for a commercial purpose. It continues to be allowed to share copies with your family and a circle of friends though. It is also permitted to share with other members in a closed society, or to colleagues when it is reasonable to do so in a specific professional situation, e.g. sheets of music for musician colleagues. But it is no longer permitted to copy documents and then share with colleagues in a workplace. It is only allowed for personal professional practise to make copies for your own use. To sum up, this means that the amount of copies that may be made has been restricted, and making copies for colleagues at a workplace is forbidden. In an educational context copies may be made of published works unless there is a license agreement between the parts in the agreement. If the originator at either part announces that usage is prohibited this is valid. Overall, the new legislation aims at limiting illegal copying, mainly of music and film, which through file sharing systems can be downloaded to the individual user. The right to copy does not comprise computer programs. These must only be copied to the hard disk in order to make it possible to use the program, i.e. if the program was acquired legally. Copies of computer programs are thus never allowed.
Copying with the BONUS-agreement
The law approves of the making of copies for private use in one or a few copies. This does not exclude different kinds of acquisition and to a greater extent than what is required for personal use. Copying for educational purposes and special sets for a class may be done through a license agreement. From 1990 the state and other institutions pay to a joint administrative organisation – BONUS. Its task is to distribute incoming funds to organisations concerned. The agreement makes it possible to produce and sell compendiums at cost price. According to §12 from “General terms of contract for copying in the university college field”, i.e. BONUS standard agreement, teachers have the right to copy 15% or at the most 15 pages from a work. If a whole chapter from a book is needed the teacher can copy the whole section unless it is more than a few pages more than what is allowed. Teachers thus have the right to copy and spread printed material. The copying agreement must be followed though, and it means for example that a teacher must not give a book to the students and say – please copy this.
Regarding digital material there is an absolute prohibition against the above mentioned and it is not included in the BONUS-agreement. A teacher can for instance not pass on an article in digital form to her students. If an author does not want her work to be used for copying she can inform Bonus Presskopia about this and they are obliged to communicate this. A teacher is thus not obliged to find out for himself if copying is prohibited or not.
Quoting
The right to quote is based on The copyright law, §22. Quoting is based on those rules that apply to non-profit rights, i.e. quoting should render the original text exactly and state the source. It should be clear from the text what has been quoted. According to the law anyone can quote from texts that have been made public according to custom to an extent that is justified by the circumstances. This does not mean that you can take a whole text and present it as your own composition. Exactly where the line is drawn can not be defined from the law, but this has to be settled in each separate case from what is suitable in relation to the author’s own text. Quoting should be seen as a part in a greater context, used in your own text for example in order to verify or falsify a thesis. The main principle of §22 is that quotes may be made from all works, though this does not apply to photographs or images. Works of art can, according to §23, be depicted in connection with the text in a scientific production with is not created for a profitable purpose.
One example where the right to quote was trespassed can be found in NJA 1996 p. 712. Aftonbladet reproduced three quotes from an interview in Dagens Nyheter. The quotes comprised about one fifth of the article. The Supreme Court found that this use was not motivated by the right to quote and that it was not in agreement with good practice.
Linking
A common way of referring to documents on the Internet is by linking them to each other. We speak mainly of hypertext links and deep links. In the first case the link points to another web page and not directly to the document, which is the case with deep linking. You could claim that a person who creates such links is providing access to copyright protected material. If linking were to be considered as copyright violation this would have serious consequences for a global network like the Internet, which is based on this function.
The Supreme Court in Sweden has acquitted a case about deep linking of a musical recording in MP3-format though, and has stated that it should be considered as making it accessible as a public appearance. According to §47 of the Copyright law, sound recordings may be used at public appearances without the originator’s permission.
Teacher exception
In Swedish legislation there are no direct rules for who has the right to dispose of work or inventions which were created during a contract of employment. This can be regulated either by an agreement between employers and employees or by collective agreement. According to the law (1949:345) about the right to employees’ inventions, the employer has the right to dispose of an invention which was created as a step in the employee’s tasks at the workplace and if the invention falls within the sphere of activities of the employer.
According §1 of the law teachers at universities and university colleges should not be considered as employees though. This is what is normally characterized as the teacher exception. Teachers have the right to exploit inventions they make at work without any impediments from their employer. Lately there has been a debate in Sweden about the removal of this exception. LO, Confederation of Swedish Enterprise and The Federation of Private Enterprises want to abolish it, while the united community of higher education want to keep it (autumn 2004). The Minister for Industry and Trade, Ministry of Industry, Employment and Communications, Tomas Östros, also supports the abolition. The teacher exception thus regulates the teacher’s right to patentable inventions. This should not be confused with literary and artistic work which is regulated in the copyright law. As can be seen above this is regulated in agreements.
Sources:
Broms, Susanna (1995). Biblioteken och juridiken. Lund : Studentlitteratur. ISBN 91-44-03016-9
Legala handboken (2004-09-15). http://www.legalahandboken.netuniversity.se/index.html (2005-10-26)
Kent Pettersson
2005-11-01
