On 31 January 2020, the Swedish Patent and Market Court delivered a judgment regarding copyright infringement under the Swedish Copyright Act (the “Copyright Act”). The case concerned the question of whether an episode of the popular true crime podcast Mordpodden infringed the copyright of a Swedish writer to the book Kakelugnsmordet. The case is of interest as it sets out a legal precedent for podcast creators in respect of implementing facts vis-a-vis creative, individual expressions from copyright protected work into podcasts, and sheds light on the manner in which a copyright proprietor shall be named in relation to the use of copyrighted material in podcasts.
The claimant, a Swedish writer, published the book Kakelugnsmordet in 2015 covering a murder that took place in Sweden as early as the 1960s. The book contained exclusive interviews with the offender and a review of private letters and notebook annotations from both the offender and the victim. Accordingly, the book contained information which, prior to release, had not been accessible to the general public.
The defendants were two journalists producing a popular true crime podcast called Mordpodden. One episode, Tandläkarmordet, depicts the story of the same criminal case as described in the book Kakelugnsmordet. According to the defendants, the process of creating an episode includes one of them performing research for the podcast, summarizing judgments, the contents of police files, etc. On the basis of this supporting documentation, the same person writes the text for the episode. The other person then reviews and provides comments based on such underlying text. Thereafter, the episode is recorded, edited, completed and finally published on a podcast platform where anyone can listen to the episode at any given time.
For this particular episode, there was a shortage of accessible information, as the actual case was relatively old. Therefore, the defendant responsible for the research of the episode procured information from, inter alia, the claimant’s book Kakelugnsmordet. According to the defendants, about 50 % of the information aired in the podcast was taken from the book.
After unsuccessful out-of-court settlement discussions between the writer and the two journalists, the writer filed a crime complaint alleging copyright infringement, which subsequently resulted in a complaint from a Swedish prosecutor regarding criminal liability for the two journalists alleging infringement, intentional or by gross negligence, of the writer’s copyright to the book Kakelugnsmordet under Chapter 7, Section 53 of the Copyright Act.
The Patent and Market Court initially concluded that the book Kakelugnsmordet enjoyed copyright protection under the Copyright Act. In this context, it may be noted that the requirement of originality under Swedish law is rather low in relation to literary works, which is also clearly indicated by the court’s reasoning. The Patent and Market Court further noted that while facts and ideas are not protected, copyright protection covers the writer’s individual configuration and formulation of the work, insofar as it is a creation of the proprietor’s intellectual creation. In connection with such conclusion, the court makes a reference to a case tried by the Court of Justice of the European Union, i.e. C-310/17 the Levola Hengelo case.
The Patent and Market Court went on to determine whether the writer’s copyright had been infringed. It was noted that a reproduction of a work is not limited to physical copies but also covers digital copies that are saved and stored in a computer. Further, the court stated that publishing a podcast on a digital platform which is freely accessible to the public does constitute making a work available for the public, i.e. a communication to the public.
The defendants’ line of argumentation was based on the assertion that they had created a new and independent work in accordance with Chapter 1, Section 4, second paragraph of the Copyright Act. Under this section, one or several person(s) can obtain copyright to an adaptation of a previous work, provided that the adaptation is new and independent from the previous work.
The Patent and Market Court concluded that it could not make a full assessment comparing the podcast episode and the entirety of the book, as the invoked evidence in the case did not include the book in its entirety, but only certain excerpts thereof. Accordingly, the court went on to assess whether the episode had infringed such excerpts of the book. The comparison made by the court showed that the episode described the sequence of events in a way that closely followed the structure of such excerpts, although some parts of the information had been excluded. Further, the episode used the same or similar expressions and described the sequence of events using the same editorial nomenclature as the excerpts.
On the basis of the aforementioned, the Patent and Market Court concluded that the podcast episode infringed the writer’s copyright to the extracts of the book and could not be considered as a new and independent work.
After having determined that there was an objective infringement of the writer’s copyright at hand, the Patent and Market Court went on to adjudicate the defendants’ personal liability, i.e. whether they had acted with intent or gross negligence, which is required for criminal liability under the Copyright Act. The court noted that only one of the defendants had procured the research and written the manuscript for the episode.
The Patent and Market Court first assessed whether the defendant who had been active in the research and writing of the manuscript had acted with intent or gross negligence. As the defendants were professional journalists and the episode had been produced as part of the defendants’ commercial business activities, the court concluded that there is a stringent requirement to be familiar with, and to respect, the rules applicable to copyright protected work. Nonetheless, the court took the view that the defendant’s ambition had been to create a new and independent work and thus she had not intentionally infringed the copyright to excerpts in Kakelugnsmordet.
However, the Patent and Market Court concluded that she had acted with gross negligence. In light of the fact that the defendant had the main responsibility for the research and production of the episode, the court held that the defendant should have understood that the episode risked infringing the copyright to the book. The Patent and Market Court concluded that by failing to take any precautionary measures in this regard, the defendant had acted in a grossly negligent manner and was thus criminally liable for copyright infringement. Considering that the infringement concerned limited excerpts of the book, and that the infringement was not made with intent, the court determined that the sanction should be a moderate fine.
The other defendant (i.e. the journalist who had not conducted the research or written the manuscript for the episode) was acquitted. While the court noted that such defendant must have understood that the episode was based on Kakelugnsmordet, the circumstances and evidence in the case did not show that such defendant had any reason to suspect that the episode infringed the copyright to the book.
The Patent and Market Court also assessed whether the writer’s right to be named in accordance with “good practice” as set out in Chapter 1, Section 3 of the Copyright Act had been respected. In this context, it should be noted that the right to be named applies even in the case of unlawful copyright dispositions. In this case, the writer was named at the end of the episode. The prosecutor argued that the writer should also have been named in the beginning as well as continuously throughout the episode. However, the prosecutor had not provided the court with any supporting documentation on what constitutes good practice in this regard. Therefore, the court had to rely on the statement of one of the defendants who claimed that, as far as she knew, naming in podcasts is usually done in the same manner as reflected in the episode under review. Thus, the court concluded that the writer’s right to be named had been respected in regard to the act of making the work available to the public. As regards the act of reproducing the work, i.e. in this case reproduction of the work in the form of a digital recording stored on one of the defendant’s computers, the court found that there were no other relevant means available for the defendants in order for the proprietor to be named in addition to what the defendants had already done. Therefore, the Patent and Market Court concluded that the writer’s right to be named was also respected in this regard.
The Patent and Market Court’s judgment in the Mordpodden case is a reminder that while copyright does not protect facts and ideas, it does protect the proprietor’s intellectual creation, including the special configuration and formulation of the work. In other words, it is not forbidden per se to use facts and information from a copyright protected work as the basis for, e.g. a podcast episode. However, in this particular case the episode described the sequence of events in a way that closely followed the structure of the excerpts from the book and used the same or similar expressions and editorial nomenclature. Thus, the episode did not use the facts from the copyrighted work in a new and independent form and hence infringed the writer’s copyright to the excerpts of the book.
Considering that podcasts have become a very popular medium, the Mordpodden case will most likely be of relevance in the world of podcasting, particularly in relation to the research and production process as well as the practice of referring to sources used for podcast’s content. On a final note, the current prevalence of this case is further supported by the fact that another Swedish true crime podcast, Svenska Mordhistorier, recently deleted over one hundred episodes after being subject to vast criticism for plagiarizing a large number of news articles and blogs. It will be interesting to see whether the decision continues to have a significant impact on the podcast community in the coming years.