PRIMARY SOURCES

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(1450-1900)

Commentary on:
Swedish Freedom of the Press Ordinance (1810)

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Sweden’s 1810 Freedom of the Press Ordinance: §1:8 and the introduction of authors’ rights

Martin Fredriksson

Linköping University

 

Please cite as: Fredriksson, Martin (2023) ‘Commentary on Swedish Freedom of the Press Ordinance (1810)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1.         Full Title

Kungliga Majestäts och riksens ständers fastställde Tryckfrihetsförordning, 1810

[The Freedom of the Press Ordinance approved by his Royal Majesty and the Estates of the Nation in 1810]

 

2.         Abstract

Sweden’s Freedom of the Press Ordinance of 1810 was not only a return to the liberal ideals that shaped the famous Freedom of the Press Ordinance of 1766 (sometimes referred to as the world’s first freedom of the press act), but it was also, arguably, Sweden’s first copyright regulation. This was indeed the first time that authors’ rights to the works they produced were acknowledged in Swedish law, although it was only mentioned in one paragraph, stating that ‘Any writing is the property of the author or its legal proprietor.’ The inclusion of authors’ rights in the Freedom of the Press Ordinance was largely uncontroversial and uncontested, and this commentary argues that it was most likely included because many of those involved in drafting the legislation were not only politicians but also authors and intellectuals. As such, they were familiar with the debates on authors’ rights in England and on the continent at the time. However, unlike in other European countries, the legislators did not elaborate on the nature and limitations of literary ownership, but merely assumed that the ownership of texts was to be equated with any other form of material property. Consequently, early Swedish copyright came to be entirely unlimited in time.

 

3.         The 1810 Freedom of the Press Ordinance takes shape

4.         Introducing Authors’ Rights

5.        A Changing Perception of Literary Property

 

3. The 1810 Freedom of the Press Ordinance takes shape

The birth and early development of copyright took a different form in Sweden than in most other European countries. Swedish copyright did not emerge as a separate law but as a single paragraph in the 1810 Freedom of the Press Ordinance passed after a coup d’état in 1809 that put an end to the reign of King Gustav IV Adolf as well as to the unsuccessful war he had been waging against Russia. Apart from redrawing the national borders by ceding the territory of Finland to Russia, the post-revolutionary regime also adopted a new constitution that expanded civil liberties, established the principles of constitutional monarchy and reinstated freedom of speech. The latter led to the passing of a new Freedom of the Press Ordinance on 9 March 1810.[1] The 1810 Ordinance was not the first of its kind, but part of a half-century-long process in which different short-lived liberal and conservative legislations succeeded each other depending on the political powers in force. On the whole, the Ordinance of 1810 resembled the liberal press freedom legislation of 1766 – sometimes characterized as the world’s first freedom of the press act – but it surpassed its predecessor by also abolishing theological censorship.[2] By 1812, however, these rights would be restricted in a new, more conservative, freedom of the press regulation.

Nevertheless, something that would remain even after 1812 was § 1:8, which stated:

Any writing is the property of the author or its legal proprietor. Whosoever prints or reprints without the Author's or Publisher's written permission will lose the edition or be fined its full value, the discretion of the plaintiff.[3]

This commentary will focus particularly on the above paragraph and why the legislators chose to include such a provision in the Freedom of the Press Ordinance. This warrants a brief overview of how the legislation came into force.

Shortly after the coup d’état of 1809, a working group was appointed to draft a new freedom of the press act. This group included seven men who were all well known in literary and political circles: Carl Gustaf af Leopold, Gudmund Jöran Adlerbeth, PA Wallmark, Hans Gabriel Trolle-Wachtmeister, Carl von Rosenstein, Gustaf af Wetterstedt and Gabriel Poppius.[4] Although PA Wallmark was appointed secretary, Leopold – a prominent author and member of the Swedish Academy – soon became the informal leader of the group.[5]

On the core issue – the abolition of censorship – the working group took a moderate position. It did not propose to abolish censorship altogether and instead saw fit to continue to censor theological writings, plays and academic dissertations.[6] The proposal also included a long list identifying various forms of “criminal use of press freedoms”, including criticism against religion, the king, the state, foreign powers as well as libel and defamation of individuals.[7] When the proposal was referred to the Constitutional Committee, it was dismissed as too restrictive. Instead, the committee presented its own proposal to the parliament on 28 November 1809; it was this text that would eventually be adopted as Sweden’s new Freedom of the Press Ordinance. The Constitutional Committee acknowledged that its bill had been guided by the working group proposal, but also stated that this had not been fully compatible with the principles of free speech stated in the constitution.[8] While the new proposal met with some resistance from conservatives, it was approved by the parliament with just a few minor changes on 9 March 1810.[9]


4. Introducing Authors’ rights

The question of copyright was first raised in § 6 in the original proposition from the working group dealing with “two important topics for literature, namely the authors’ ownership of what is created by them and the freedom of the book trade in regard to foreign writings”.[10] Allowing the free import of literature was largely in line with the attempt at that time to deregulate the Swedish book market. Copyright was, on the other hand, a non-issue in Sweden’s cultural and political debate until the middle of the 19th century.[11] When PA Wallmark, himself a member of the working group, published a summary of the bill in his periodical, The Journal for literature and Theater, he did not mention the copyright clause, and Ulrik Volgsten has stated that Wallmark’s journal did not touch upon the copyright issue at all during the entire year preceding the passing of the Freedom of the Press Ordinance.[12]

The copyright paragraph in the Freedom of the Press Ordinance thus lacks precedent in Swedish legal history as well as in public debate. Nevertheless, the 1809 draft proposal motivated a property right for literature with the same Lockean property theory that was evoked in the English debate, stating that:

since an author’s right to what he has written cannot be different or less than to everything else that is produced through his diligence, fairness demands that he retains, and passes on to his heirs, the same rights that should befall him to any other kind of property. Thus, no one has permission to publicly publish another's work.[13]

Eberstein sees this as a consequence of the strong literary interest within the working group: in addition to the authors Leopold, Adlerbeth and Wallmark, the group also included the scientist Hans Gabriel Trolle-Wachtmeister and the two academy members Carl von Rosenstein and Gustaf af Wetterstedt. Of the seven members, it was only the lawyer Gabriel Poppius who was not an author in some capacity. That the authors were in the majority is also reflected in the more literary and argumentative style that distinguished the above paragraph.

When the Constitutional Committee revised the original proposal, it kept the statement about the rights of authors, although it moved it to §1.8 and rephrased it  much more concisely :

Any writing is the property of the author or its legal proprietor. Whosoever prints or reprints without the Author’s or Publisher’s written permission will lose the edition or be fined its full value, the discretion of the plaintiff.[14]

Within the freedom of the press debate, copyright is a mere by-product, but Petri argues that it played an important role in restructuring the book market. When the copyright committee was first appointed, it was also required to develop a Regulation for Book Printing and Trade in accordance with the Freedom of the Press Act.[15] The new Freedom of the Press Ordinance thus not only marked a new view of citizens’ freedoms and rights, it also presented a new way of organizing the book and publishing industry when the privilege system had played out its role. Although the state privileges were not banned until 1876, the Freedom of the Press Ordinance of 1810 stipulated that no privileges were required to publish a writing which contributed to a completely new freedom of establishment within the book industry.[16] The fact that many of the regulations that hampered the book market during the 18th century were now removed would not only promote freedom of expression, but also contribute to the great expansion of the literary market in the first half of the 19th century.[17]

 

5. A Changing Perception of Literary Property

The references to property rights discourses that influenced copyright debates elsewhere suggest that the authors were aware of and inspired by developments in Europe. Eberstein sees the French development and the 1793 Declaration on the Rights of Spiritual Work as a source of inspiration for the committee’s proposal. The Swedish bill, however, differed from most other copyright laws in the sense that it presumed that literary property rights were in principle not time-limited.[18] In that regard the Swedish law was more in tune with the natural rights perspective that was popular in England, as it tended to equate literary property with any other property right. As an acknowledgment of unrestricted literary property rights, however, the Swedish law went further than its English counterpart: as Petri observes, the Swedish copyright clause would respond to the demands for unlimited literary property that English publishers had fought for in vain for a century.[19]

If previous regulations had primarily concerned printers, the authors were given the main role in the 1810 legislation which, according to Henrik Schück, not only strengthened authors’ economic rights, but also expressed a new view of authorship, stating: "that literature was something other than a craft, that the book above all had a spiritual value, and that the author therefore had the most essential part in it."[20] Schück might be correct about the shift in focus from the printer to the author and about the consequences for the development of the book market, but he probably overstates the importance of the law as a general acknowledgement of the spiritual value of literature.

The copyright provision that Leopold and his colleagues included in their bill seems to have been accepted more or less in the passing. The term “the author’s property rights” was also mentioned in the constitutional committee’s bill, where it was used as a seemingly self-evident and uncontested concept.[21] The only member of parliament to commented on §1:8 was 24-year-old Lorenzo Hammarsköld, a prominent critic and writer in the making, who appreciated it as a recognition of the author’s unconditional and unlimited property rights. He praised the new law for abolishing “the narrowness of privileges, because I, as an Author, should enjoy protection for this personal property right as well as for other properties, without having to partly beg and partly buy myself to a new certificate”.[22] This suggests that he was aware of the copyright debate in Europe and the natural rights approach to literary ownership. However, Hammarsköld's intervention did not attract much attention. His colleague in parliament, Johan Hindric af Geijerstan, objected that a time-limited ownership right might be sufficient to compensate the author, but no one responded and the debate fizzled out before it even began.[23]

The fact that the Constitutional Committee, in turn, so easily accepted copyright as part of the Freedom of the Press Ordinance might also be explained by the fact that the author’s interest was equally strong within the Constitutional Committee: six of the committee members were former or future members of the Swedish Academy, including Adlerbeth and Carl von Rosenstein, who was also part of Leopold’s initial working group.[24] They were well-read intellectuals and many of them were likely to be familiar with the ideas that flourished in the rest of Europe. It is therefore safe to assume that they were influenced by the development of copyright law outside the country's borders.[25] The fact that the question was barely raised in parliament could, however, imply that although literary property was a matter of personal interest to some of the legislators it was altogether insignificant in the eyes of parliament as well as the general public.

Finally, it is debatable to what extent § 1:8 of the Freedom of the Press Ordinance can really be seen as a copyright provision. It is fundamentally a recognition of the ownership of texts, but it makes no mention of the right to copy: i.e. the right to reprint and disseminate literary works that would be significant to Anglo-Saxon copyright laws. Neither does it engage with the idealistic aspects of an artistic work in the tradition of continental authors’ rights: the Freedom of the Press Ordinance acknowledges the ownership of text – originals as well as copies – but never addresses the literary work as an immaterial, idealistic concept.[26] In the 1810 Freedom of the Press Act, the rights of authors were simply addressed as analogous to any other material property right, unlimited in scope as well as in time. These aspects would be addressed later in a series of revisions and additional laws passed over the course of the 19th century.

 

Endnotes



[1]Eberstein 1923 pp. 70 ff.; Naumann 1862 pp. ccxv f.

[2]Vegesack 1995 p. 195.

[3] Hwarje skrift ware Författarens eller dess lagliga rätts Innehavares egendom. Hwilken, som Skrift trycker eller efter trycker utan Författarens eller Förläggarens skriftliga tillstånd miste uplagan eller böte des fulla wärde, målsägandes ensak. Freedom of the Press Act 3/9 1810, §1:8.

[4]Eberstein 1923 p. 70.

[5]Petri 2008 p. 288; Vegesack 1995 p. 193.

[6]The working group proposal of 21/9/1809 for a new freedom of the press regulation, § 2 [Kommittéförslaget den 21/9 1809 till ny tryckfrihetsförordning]. In Swedish this working group was called a committee of experts, and their proposal was consequently called the Committee proposal [Kommitéförslaget]. To avoid confusion with the proposal by the Constitutional Committee [Konstitutionsutskottet], I refer to them as a working group and to their proposal as the working group proposal.

[7]The working group proposal of 21/9/1809 for a new freedom of the press regulation, § 3.

[8]The Constitution Committee Memorial no. 24 1809, The Constitution Committee’s expeditions 1809-10, pp. 361 & 365

[9]Naumann 1862 pp. ccxvi.

[10] ’tvenne för litteraturen viktiga ämnen, nämligen författares äganderätt till hvad af dem alstras och bokförsäljningens frihet i anseende till utländska skrifter.’ The committee proposal on 21/9/1809 for a new freedom of the press regulation, § 6.

[11]Petri 2008 pp. 25 & 229.

[12]Volgsten 2012.

[13] då en författares rätt till hvad han skrifvit icke kan vara annan eller mindre än till allt annat, som genom hans flit frambringas, fordrar billigheten att han ock på lika sätt därvid bibehålles, och gånge samma rätt efter honom, till den som honom i annan tillhörighet lagligen efterträder. Ingen äge således tillstånd att i offentligt tryck utgifva en annans arbete.’  The committee proposal on 21/9/1809 for a new freedom of the press regulation, § 6.

[14]Freedom of the Press Ordinance 3/9 1810, §1:8.

[15]Petri 2008 p. 287.

[16]Freedom of the Press Ordinance 3/9 1810, §1:4; Vegesack 1995, p. 23.

[17]Schück 1923, pp. 337.

[18]Eberstein 1923, p 71.

[19]Petri 2008, p. 295.

[20]Schück 1923, p. 357.

[21]The Constitution Committee’s proposal for the Freedom of the Press Act, 28/11 1809, § 2:8.

[22] den hädanefter uphäfwer nödwändighten af privilegier, ty jag bör wäl som Författare likaså wäl njuta skydd för denna min personliga äganderätt som för mina öfriga utan att behöva dels tigga dels köpa mig till ett nytt certifikat”. Protocols of the estate of Nobility, 1809, Volume 3:2, p, 4166.

[23]Protocol of the estate of Nobility, 1809, Band 3:2, pp, 4176.

[24]Eberstein 1923, p. 72.

[25]Eberstein 1923, p. 71.

[26] Volgsten 2012.

 

References

Eberstein, Gösta (1923) Den svenska författarrätten, Stockholm: Norstedts.

Fredriksson, Martin (2009) Skapandets rätt: Ett kulturvetenskapligt perspektiv på den svenska upphovsrättens historia, Göteborg: Daidalos.

Naumann, Christian (1862) Sveriges Grundlagar och Constitutionella stadgar, Stockholm: P. A. Norstedt & Söner.

Petri, Gunnar (2008) Författarrättens genombrott, Stockholm: Atlantis.

Schück, Henrik (1923) Den svenska förlagsbokhandelns historia, Stockholm: Norstedts.

Vegesack, Thomas von (1995) Smak för frihet: Opinionsbildningen i Sverige 1755-1830, Stockholm: Natur och kultur.

Volgsten, Ulrik (2012) Musiken, medierna och lagarna: Musikverkets idéhistoria och etablerandet av en idealistisk upphovsrätt, Möklinta: Gidlunds.

 

Co-funded by the ERC project Before Copyright, funded by the European Union (ERC, BE4COPY, 101042034). Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Council. Neither the European Union nor the granting authority can be held responsible for them.



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