Rethinking Swedish copyright law: tackling obstacles in conducting & disseminating research
Will Sweden adopt a copyright legislation that is better suited for research and science soon? On 19 January, Minister for Justice Gunnar Strömmer received the results of a public inquiry process. This effort could be a positive first step, as several of the proposals in the inquiry report aim to create a better environment for research. Frantzeska Papadopoulou and Eric Luth – KR21’s national coordinator, two of the experts in the inquiry, explain the proposals.
|What’s at stake
|In 2022, the Government gave a public inquiry the mandate to propose changes in the exceptions and limitations in Swedish copyright law. The proposals were handed over to the Minister for Justice on 19 January, with several suggested changes of relevance for research and science.
|– New opportunities for researchers to share data with colleagues and for peer review.
– Improved possibilities for researchers and journalists to use TDM beyond research projects, allowing them to benefit from it in the exploratory and experimental phases, crucial steps towards formulating and finding actual project ideas.
– A legal basis enabling the reproduction of works for research purposes to museums and expanding this right to all public libraries.
|Who should act?
Sweden is investing heavily in open science. Its importance is emphasised in the 2020 Government Research Bill and the new national guidelines for open science. The core principle is that results from publicly funded research and the underlying data should be made publicly available immediately.
Despite the widespread political consensus supporting open science, the legal framework has not kept pace. Copyright law offers a good illustration, as it often is a hurdle for conducting and sharing research. This may now, however, partly be subject to change. On 19 January, a public inquiry report was handed over to Minister for Justice Gunnar Strömmer, initiating the political process to evaluate and modernise the exceptions and limitations (E&Ls) in Swedish copyright law.
When the inquiry was commissioned in the summer of 2022, the Swedish Government provided five directives, none of which were directly related to research and science. However, the rapidly evolving landscape took centre stage during the inquiry’s progress. The advent of ChatGPT and other AI models revolutionised how individuals could harness AI. Although the text and data mining (TDM) provisions from the 2019 Copyright in the Digital Single Market (CDSM) Directive only came into effect on January 1, 2023, it became evident throughout the year that policymakers had overlooked certain aspects during the Directive’s implementation. The May 2023 Council Recommendations on Open Science from the Swedish EU Presidency further highlighted these issues.
The inquiry report sets out several provisions to improve the possibilities for research and open science:
A new exception, 15d §, is proposed based on Article 5.3a of the EU InfoSoc Directive (‘use for the sole purpose of illustration for teaching or scientific research’). This proposed exception permits the communication of works within research projects, facilitating joint research efforts and result verification (such as peer review), provided the purpose is non-commercial. The exception bears similarities to Section 60(4) in German copyright law, albeit without defining research groups as public entities. This exception could prove crucial, particularly in TDM projects where institutions and researchers involved in the same research project must share works (or mined copies).
A debated aspect of Article 5.3a revolves around whether the ‘purpose of illustration’ requirement applies to both teaching and scientific research or solely to teaching. While the inquiry suggests it might only apply to teaching, it acknowledges the absence of clear guidance from the Court of Justice of the European Union (CJEU), asserting that the exception should be valid in either case.
Rapid changes and the increased use of TDM, large language models (LLMs), and AI, along with forthcoming EU legislation, are sparking discussions, which indicates that this proposal does not mark the end but rather the start of reforms related to these topics. The inquiry report identifies several issues that future legislative processes need to look into, such as the interpretation of ‘lawful access’ (Art. 3 in the CDSM Directive), concerns related to remote access and cross-border usage is another issue, as well as the restrictiveness of requiring a ‘non-commercial purpose’ – not the least given the focus in the EU Research Area’s Policy Agenda, and other EU strategies and policies, on collaboration between universities and businesses.
Despite identifying these issues, resolving them has been impeded by EU law, time constraints, or a lack of consensus.
The widespread interpretation that the CDSM Directive would only allow TDM for research purposes within a research project conducted by researchers is recognised as a significant limitation. If this interpretation holds, there is no legal foundation for exploratory activities, experimentation, or similar endeavours by students, journalists, and other users not affiliated to a research project. In response to this concern, the inquiry proposes to move parts of the existing 21 § to a new 16 f §, and draw on Article 5.3n of the InfoSoc directive. This InfoSoc provision empowers cultural heritage institutions to make works in their collections available to individuals for research purposes or private study through dedicated terminals and other technical means. Additionally, this paragraph authorises the copying of works for such communication.
Currently, 16 § allows research libraries, state archives, and municipal archives to make copies of works for research purposes, in accordance with a provision based on Article 5.2c of the InfoSoc directive. The inquiry recommends expanding this exception to include museums and public-access libraries (or those accessible to a segment of the public, such as universities). This extension broadens the legal scope for various cultural heritage institutions to reproduce works for scientific research.
Crucially, this provision does not exclude private or non-state museums, distinguishing it from the practices in most other Nordic countries. This distinction is significant, especially considering the abundance of local history and working life museums in Sweden. However, audio and film institutions and non-state archives (like private archives) are excluded. Additionally, the institutions covered by this exception must operate on a not-for-profit basis, aligning with the requirements of Article 5.2c of the InfoSoc directive.
Furthermore, a new exception is introduced in 16 §, permitting cultural heritage institutions to make copies of their works for the purposes of management, organisation, and other internal uses essential for maintaining the works in their collections.
These proposals mark the beginning of improvements in the research environment but fall short of addressing all necessary aspects. The inquiry focused on investigating exceptions and limitations. However, it was not empowered to formulate proposals on, for example, secondary publishing rights (SPR), unless SPR is construed as an exception or limitation. A dedicated chapter in the inquiry report elaborates on SPR, detailing its necessity and implications. Notably, it observes that no other country appears to have implemented SPR as an exception; instead, it is typically treated as a contractual limitation. Furthermore, the inquiry notes a lack of legal foundation in EU law for presenting SPR as a limitation to copyright. Nevertheless, the mere inclusion of SPR in the inquiry provides an opportunity for policymakers and the government to delve deeper into the issue, and possibly introduce it outside the scope of E&Ls.
The government did not explicitly address research and science in any of its directives to the public inquiry. Nevertheless, several proposed amendments aim to alleviate obstacles in conducting and disseminating research.
Beyond the realm of research and science, the inquiry report suggests additional amendments to modernise or introduce exceptions and limitations related to freedom of panorama, news reporting, and parody. Now that the report has been submitted to the Government, a consultative round will be the next step, where concerned stakeholders can give input on the proposal.
Project Manager, Wikimedia Sverige
Professor of Intellectual Property, Chair and Director of the Institute for Intellectual Property and Market Law, Stockholm University
23 January 2024