Commentary on The Swedish Copyright Act

Martin Fredriksson

Linköping University

Please cite as: Fredriksson, Martin (2023) ‘Commentary on The Swedish Copyright Act (1877)’, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full Title

Lag angående eganderätt till skrift, SFS 1877:28

[Law regarding ownership of writings, SFS]

2. Abstract

For most of the 19th century Swedish copyright law was primarily regulated by the Freedom of the Press Ordinance of 1812, which merely stated that ‘Any writing is the property of the author or its legal proprietor’. It was not until 1877 that Sweden passed a separate, comprehensive copyright law. This was initially motivated by the fact that copyright was becoming much too extensive and complicated an issue to be regulated in a constitutional law. Apart from addressing many of the practicalities surrounding the exchange and sale of literary rights, the 1877 Copyright Act also introduced two important novelties in Swedish copyright law. First, it imposed a fixed time limitation on the protection of copyright; while the previous law had, in practice, allowed for an eternal extension of copyright protection, the new act limited this to 50 years after the death of the author. Secondly, the 1877 Copyright Act provided a certain, although very limited, copyright protection for translated works stating that original authors retained their copyright for works translated from Swedish into Norwegian or Danish. This was the most controversial part of the new law as many publishers saw this as a limitation of what they thought of as their ‘freedom to translate’ which, they argued, could limit public access to literature.

3. The 1877 Copyright Act takes shape

4. The Content of the Law

5. The Rights to Translations

3. The 1877 Copyright Act takes shape

Up until 1877 Swedish copyright law was primarily regulated by the Freedom of the Press Ordinance of 1812, which merely stated that ‘Any writing is the property of the author or its legal proprietor’.[1] Over the course of the 19th century this was revised in 1841 and complemented with separate regulations for the ownership of dramatic works in 1855 and visual art in 1867, but it was not until 1877 that Sweden passed a separate, comprehensive copyright law. The Constitutional Committee presented its first proposal to remove the copyright provisions from the Freedom of the Press Ordinance in 1871. The Constitutional Committee argued that copyright was not only alien to freedom of the press as a constitutional civil right, but also faced extensive revisions that could simply not be fitted into the ordinance.[2] In 1875 the Parliament approved the proposition to remove all provisions on literary property from the Freedom of the Press Ordinance without much discussion.[3] The Ministry of Justice was assigned the task of drafting a new copyright law. Awaiting their proposal, a temporary Ordinance regarding ownership rights to writing was adopted in 1876 ensuring a basic copyright protection during the time of transition. In practice, this only meant that the clause that was excluded from the Freedom of the Press Ordinance was now instead adopted verbatim as a civil law regulation pending the passing of a new copyright law the following year.[4]

The Ministry of Justice’s original proposal for a new copyright law was first referred to the Supreme Court, which in the summer of 1876 criticized it on several points. Guided by the Supreme Court’s statement, the Ministry of Justice formulated a new proposal which was reviewed and thoroughly revised by the Law Committee, which submitted its own revised version of the bill to the Parliament in early 1877.[5] The proposal was debated and finally re-referred to the Law Committee with further revisions.[6] Based on the views of the Parliament, the proposal was reworked again, and within a few weeks the Law Committee presented the legal text that was to be adopted by the Parliament on 22 May and came into force as Sweden’s first separate copyright legislation on 10 August 1877.

4. The content of the law

The 1877 Law regarding ownership of writing was obviously much more comprehensive than the rudimentary copyright clause in the Freedom of the Press Ordinance. To a large extent, the discussions regarding the 1877 Law regarding ownership of writing focused less on principal and more on practical, technical and economic issues like publishing contracts and the transfer of literary property. What had once been a concise statement on the ownership of writings had now turned into an exhaustive set of regulations on the circulation of texts as commodities.[7]

The most significant changes were the limitation of copyright protection to 50 years after the author’s death, and the extension of that copyright to include translations to and from Norwegian and Danish. The limitation of the term of protection was not only an important decision in principle; it would also have major practical consequences, as it established for the first time a definite limit to copyright protection. The 1810 Freedom of the Press Ordinance had made no references to the terms of protection but merely addressed literary property as any other property and presumed the protection to be unlimited. It was not until 1841 that the Ordinance was revised to include a restriction stating that the copyright expired if the author or rightsholder did not use their publishing rights within 20 years. However, as this allowed the rightsholders to renew the copyright indefinitely, eternal copyright protection was still a possibility. This was finally changed with the 1877 copyright Act.

When presenting the proposal for a new law, the Ministry of Justice argued that a perpetual copyright was not compatible with “the public interest, which requires that progress made in the spiritual field should without difficulty be spread among the people and become their property”.[8] The discussion in 1877 partly evoked arguments first formulated in 1841, that after a certain period of time, texts could be seen as belonging more to a reading public than to the heirs of the author.[9] Considering its principal and practical importance, the limitation of copyright terms attracted surprisingly little attention in the Parliament and the discussion mainly concerned the precise term of protection. While most European countries had shorter terms of protection, Sweden chose to follow the example of French law and adopt a copyright term of 50 years.[10] The relatively long term was justified by the fact that Sweden had a small market for literature where it could take a long time for a book to recover its costs.[11] The question of principle – whether a property right can legitimately expire after a certain period of time – was questioned only in passing.[12]

5. International copyright and the rights to translations

Whereas the new term of protection was largely uncontroversial, the question of protection for translated works was a matter of great debate. At this time, only Swedish authors were protected by Swedish law. This meant that Swedish publishers could freely translate and publish foreign works, but also that Swedish authors were not protected abroad as protection for foreign authors was usually reciprocal. Protection for foreign works had been on the agenda several times in the past but had been discarded for various reasons. As late as 1866 the prominent author and member of parliament, August Blanche submitted a proposal to extend copyright protection to Norwegian and Danish authors. Blanche’s proposal was rejected on technical grounds, referring to the complex process of changing a constitutional law. Nevertheless, a decade later it still proved to be very difficult to reach a consensus on the rights of foreign authors, and when the Parliament finally agreed on a formulation that protected the original authors’ copyright to translations of their works into other Nordic languages, many perceived this as a half measure. From a practical point of view the law seemed to implement Blanche’s suggestion; however, if that had included a recognition of the author’s right to translations, the 1877 legislature dodged that question by defining Swedish, Norwegian and Danish as different dialects of the same language, thereby circumventing demands for a more comprehensive international copyright protection.[13]

On the continent most countries acknowledged the copyright of foreign authors to some extent. Consequently, the Ministry of Justice chose to include a corresponding provision in its first proposal for a Swedish copyright act.[14] This, however, met with fierce resistance from the publishers. In an article in their journal Svensk Bokhandelstidning, the Swedish Book Publishers’ Association argued that legal protection for foreign works would lead to higher prices for translated literature at the expense of the reader. It was a common concern at the time that international copyright protection did not favor a small nation like Sweden with a limited literary export. For such a country a mutual protection of translated works would be of no real benefit to the few authors who were translated, while it would do great harm to the reading public as it risked limiting access to foreign literature. These arguments would have a major impact in the parliamentary debate as well as on the Supreme Court which supported the publishers’ objection. Thus, the proposal was restricted to apply only to the three Scandinavian “dialects”.[15]

But if the Supreme Court acknowledged the argument of the publishers, the Law Committee took a different stance. The committee believed that authors from small language areas were in greater need of copyright protection for translations and that the author’s influence over the translations would also improve the quality of the translations and thereby promote access to good literature. However, the Law Committee’s main argument was of an ideological not practical nature. It argued that it was not consistent with the principles of property rights to deny the author the right to his works simply because they were published in other countries or in other languages. Here, the Law Committee relied on the natural law assumption that it is not justifiable to “diverge from what is right out of consideration for what may possibly be more or less useful”. [16]

This dispute would continue in the Parliament. When Prime Minister Louis De Geer presented the proposition, he summarized both positions and then developed his own argument about the balance between what is useful and what is right. Here De Geer pinpointed a tension that has shaped the development of copyright in Sweden since the 1840s: the need to strike a balance between the rights of the author and the interests of the public. On the whole, he acknowledged that the author’s claim to ownership of translations is legitimate in principle, but he nevertheless dismissed translation rights on pragmatic grounds. De Geer argued that it might be justified to impose certain restrictions on literary property for the good of the public: just as a landowner does not have unrestricted rights to manage his land as he pleases, a copyright holder cannot claim unrestricted freedom to restrict access to his literary property.[17] Following the Prime Minister’s line, several members spoke against a restriction of the so-called “freedom of translation”,[18] arguing that an international copyright was of no real use to Swedish authors; that it limited access to foreign literature and that it was not supported by public opinion.[19]

But it was not only those who opposed copyright protection for translated works who referred to the needs of the reading public. Alongside the moral and natural law arguments, international copyright advocates also argued that strengthened copyright protection actually benefited the reading public.[20] Those who advocated stronger copyright protection argued not only that authors deserved the people’s respect, but also that literary quality would ultimately improve if authors were guaranteed to benefit economically from their own work. This was not only about copyright as a right, a reward or an incentive for authors; members of the parliament also evoked the argument of the Constitutional Committee that the authors’ influence over the translation process constituted a safeguard against substandard translations.[21] Therefore, it was also established that a complete lack of copyright protection for translations did not promote the influx of good literature, but rather contributed to Sweden being flooded with bad foreign novels in substandard translations.[22] This was also articulated as a matter of competition where it was feared that cheap foreign novels could out-compete domestic literature.

Last but not least, the question of copyright protection for foreign authors was also a matter of adapting to international standards. Sweden was one of the few countries that entirely lacked copyright protection for foreign works.[23] In this respect, the Swedish stance resembled that of the United States which was infamous for its refusal to acknowledge the rights of foreign authors, arguing that paying royalties for foreign works would hamper access to affordable literature for the American public. The question of international copyright protection was debated regularly until Sweden signed the Bern Convention in 1904. In the domestic debate, translation rights were often framed as a matter of international responsibility and respectability, where proponents of international copyright saw Sweden’s reluctance to acknowledge the rights of foreign authors as an expression of a cultural backwardness: a failure to live up to the norms of protection that existed in more cultivated European countries.[24]

That the Parliament accepted the publishers’ arguments and dismissed the demands for a proper international copyright protection can be related to the fact that the strong presence of writers that characterized the parliamentary debate about the 1810 Freedom of the Press Ordinance had no equivalent in the 1877 legislature. The authors were now completely absent from the Parliament, and August Blanche was possibly the last one to embody the writer, poet and politician in one single person. The withdrawal of writers from politics and the legislative process over the 19^th century meant that the literary sphere now had limited representation in the Parliament. Among the members of parliament who actively debated the 1877 copyright law, only two were men of letters: SA Hedin, who was a well-known liberal writer and editor for the newspaper Aftonbladet 1874-76, and Arvid Gumaelius who owned a printing house and was editor of Nerikes Allehanda 1855-81.[25] The newspaper men who took part in politics seem to have done so more as businessmen and citizens than as representatives of cultural interests. The lack of authorial voices in parliament might explain the weak stance on translation rights that would prevail until the early 20^th century.

Endnotes