Unofficial translation from the original Swedish document
1. The Court of Appeal confirms the decision of the City Court.
2. TV4 Aktiebolag shall pay for the costs of the legal proceedings in the Court
of Appeal
– to Mr Claes Eriksson SEK 237,982:- of which SEK 185,000:- is for legal
representation...
– to the estate of Mr Vilgot Sjöman SEK 238,292:- , of which SEK 185,000:- is
for legal representation...
/—/
The parties have cited the same circumstances and in the main put forward the
same arguments as they did in the proceedings at the City Court. TV4 has however
drawn special attention to the fact that, if an infringement of the moral rights
has been committed, then it was not negligent of TV4 to assume that the
rightholders accepted that there were interruptions in the broadcasting of the
films for advertising.
In the Court of Appeal, the film directors Mr Claes Eriksson and Mr Vilgot
Sjöman and Mr Mats Örbrink from TV4 have been given a new hearing. Tape
recordings of interrogations at the City Court of the film directors Mr
Kjell-Åke Andersson and Mr Kjell Grede and the film professor Ms Astrid
Söderbergh- Widding were listened to. Written evidence has been referred to. A
video recording of the broadcast by TV4 of the films in question was shown to
the Appeal Court too, and this recording included the commercial breaks.
The Court of Appeal has come to the following conclusion:
There is no dispute as to the fact that the films are cinematographic works in
the sense meant by the Swedish Copyright Law, and that Mr Claes Eriksson and Mr
Vilgot Sjöman are the creators of the two films. Nor is there any dispute
between the parties that the creators, if it be confirmed that an infringement
of their rights has occurred, shall be considered to have been affected by such
damage as is named in paragraph 54 of the third section of the Copyright Law.
What is at dispute between the parties is whether the commercial breaks are in
fact an infringement of the moral right of the creators, whether these rights
have been waived, and whether TV4 has acted negligently.
The investigation of the case has concerned, among other issues, the question of
where to draw the boundary between civil law and public law. TV4 has claimed
that the commercial breaks that TV4 has made in the broadcasted films have
followed European practice. This practice, to which all commercial TV channels
adhere, is based on the so-called TV Directive (the Council’s directive
89/552EEG of October 3, 1989, about the coordination of certain provisions laid
down by law, regulation or administrative action in Member States concerning the
pursuit of television broadcasting activities) and the amendments to the
directive made in 1997 as well as, as regards Sweden, the regulations in the
Radio and TV Law (1996:844). That law, which was amended in 2002, is in these
sections based on the TV-directive in its amended form. As has been noted in the
judgment of the City Court, the main rule according to the Radio and TV Law is
that advertisements shall be broadcast between programmes (chapter 7, paragraph
7). According to paragraph 7, advertisements may, under certain circumstances,
be broadcast during feature films, but – according to paragraph 7 – only if this
is done in such a way that neither the integrity and the value of the programme
nor the the creator’s rights are infringed. The reasoning behind the amendments
to the law indicate that these are not intended to affect the copyright rules.
An offensive change or a break in a cinematographic work, if it is to be in
accordance with agreements and the law in force, still requires the permission
of the rights’ holders (proposal 2001/02:82 p.13). The regulations in the Radio
and TV Law thus comprise the outer frame for the degree to which it is at all
allowed to have commercial breaks when broadcasting a programme. The public law
regulations thus do not affect the analysis with regard to the question whether
the creator’s moral rights have been violated.
In agreement with the City Court, the Court of Appeal finds that commercial
breaks in the films shown, do not mean that the cinematographic works have been
shown in such an alien form or in such an alien context that the breaks for that
reason should constitute a violation.
The Court of Appeal further shares the opinion of the City Court that, in
accordance with the preliminaries and legal practice of the Copyright Law, the
analysis of whether TV4's measures of interrupting the films with commercial
breaks when broadcasting Mr Claes Eriksson’s and Mr Vilgot Sjöman’s feature
films shall be undertaken in accordance with an objective standard. The Court of
Appeal wishes however, with regard to the establishment of such an objective
criterion, to point out that one can not ignore what is considered from the
perspective of the creator to be a violation, but that on the contrary the view
of the creator is a given starting point. In the objective standard, one must
thus balance the view of the creator against any opposing interests and this
standard must thereafter be seen in the light of what a creator on every given
occasion should be considered as having reason to accept. This can for example
mean that a rightholder must be prepared to accept unimportant changes which do
not affect the general view of the work. There can also be opposing interests of
an artistic or other nature that can motivate that a change shall be regarded as
acceptable.
The commercial breaks being treated of here, can in the opinion of the Court of
Appeal not be regarded as such unimportant changes in the cinematographic works
that they already for that reason ought to be accepted by the creators. In
accordance with what the Court of Appeal has declared earlier, the fact that the
law allows commercial breaks can not be used to justify a case that commercial
breaks do not violate the moral rights of the creators. It is also clear to the
Court of Appeal that the interests that lie behind the commercial breaks are not
of such a nature that, when establishing what objectively should be seen as
acceptable, they should take precedence over the interests of the rights’ holder
that his work should not be shown in a form that he considers a violation.
With the starting point in what Mr Kjell-Åke Andersson, Mr Kjell Grede and Ms
Astrid Söderbergh Widding have, from starting points based on principles,
expressed, the Court of Appeal considers that it is obvious that the commercial
breaks treated of here not only have interrupted the continuity and the
dramaturgy of the cinematographic works but have also introduced settings that
are alien and unmotivated. In one case, the commercial breaks have further meant
that the sought-after dramatic effect of switching between two scenes has been
removed. On account of the arguments put forward and the reasons that the City
Court have otherwise referred to, the Court of Appeal finds that the addition of
commercial breaks to the films has meant a violation of the creators’ moral
rights in the sense in which the City Court has declared. The Court of Appeal
further allies itself to the analysis of the City Court with regard to the
question of whether Mr Claes Eriksson and Mr Vilgot Sjöman have waived their
moral rights in connection with commercial breaks in the films and the analysis
of whether the infringement has occurred through negligence. The judgment of the
City Court is thus confirmed.