In a case opposing Bildupphovsrätt – the Visual Copyright Society of Sweden, a member of the European Visual Artists (EVA) and of IFRRO – to Wikimedia Sweden, the Swedish Supreme Court ruled on 4 April 2016 that the online publication of artworks that are placed in or at a public place outdoors is forbidden without permission first being granted.
The case started when Wikimedia Sweden opened an online database of public artworks located in Sweden, and rejected the offer of Bildupphovsrätt to discuss a licencing agreement that would have enabled visual artists to receive a compensation for the communication of the public of their works that was made possible through the database.
In its ruling, the Supreme Court of Sweden confirmed Bildupphovsrätt’s approach, according to which the exception in Swedish law for the reproduction of images of works located in public space does not entail the communication to the public of such works, and it did so by applying the well-known three-step test to the case at hand. The Court also noted the significant commercial value of making these works available in an open database, which “shall be reserved for the artists creating the works”:
“The Supreme Court declares that the regulation in Article 24, paragraph 1 of the Swedish Copyright Act, where the restriction in the artist’s exclusive rights is limited to reproductions, does not entitle Wikimedia, from its database of photographs of artworks permanently placed in or at a public place outdoors, to communicate the works to the general public via the internet. Whether this disposition takes place for commercial purposes or not is of no significance.”