Introduction
On June 2, 2022 the Supreme Court of Norway delivered a rare judgement on copyright law in the case between Advokatfirmaet Rogstad AS (Rogstad) and Verdens Gang (VG). In this judgement, The Supreme Court decides to what extent the media can use another’s already published photos in their representation of news without prior consent, and whether they would have to remunerate the owner for such use. The Supreme Court had to decide whether the use in this case was to be classified as quotes ref. The Norwegian Copyrights Act § 29 or if it was a “current event” in § 36 of the same act. These articles are harmonized with equivalent law in the EU see the InfoSoc directive art. 5 para 3.
The case background is VG’s ample use of photos of employees at Rogstad in their articles relating to the firm’s leadership and business, published between February 8, 2020 and September 2, 2020. The photographs were found on Rogstad’s homepages, and some were found on Facebook. VG did not remunerate Rogstad and did not get permission to use these photos in the articles. The articles dealt with, among other things, the lack of a requirement of good conduct for the leadership in a law firm, criticizable conduct of attorneys and the misuse of public funds.
After VG published these articles, Rogstad filed a lawsuit demanding compensation for damages, remuneration for the use of the photos and a cease and desist for further use of the photographs. Both the District Court, as well as the Court of Appeal ruled that the photographs had been used as quotes, and that no remuneration or compensation for damages was needed, but the Supreme Court overturned these decisions and ruled that Rogstad was entitled to remuneration for the use.
The case
The Supreme Court starts by saying that there must be a reasonable balance between the rights of the owner of a copyright or a photographic picture, and the freedom of speech. As such the basic principle should be that obtaining consent for use of the copyrighted work is required. To depart from this basic principle, one would require a legal basis such as the ones found in § 29 and § 36 of The Norwegian Copyrights Act. The rule found in § 29 relates to quotes and is a so called “free use” rule, whilst the one in § 36 relates to current events and is a so called “forced license” rule. The difference between the rules lie in that § 36 requires the media to pay remuneration for their use of the picture or copyrighted work.
In their assessment, the Supreme Court finds that there is limited room for quotation of photographs. In this case, the purpose of the publication did not allow for the photographs to be used as quotes in regard to § 29.
Next, the court assessed whether the “forced licensing” rule in § 36 was applicable. In previous case law (Rt. 1995-1948 Diana Ross) the court had put forth as an additional criteria that the current event had a minimum of news value. Here the publications about Rogstad had started discussions in the public and prompted a proposal for changing the law, and the articles clearly had the minimum of news value required.
The Supreme Court then examines § 36, and whether the criteria “current events” demands that the news is also related to a recent event. In their assessment, the Supreme Court consulted the EU-law, particularly C-516/17 (Spiegel Online), and found that “current events” did not demand that the news was related to recent events. This opens § 36 to be applied in cases of investigative journalism, where the critical contents might be prohibitive to obtaining consent.
The Supreme Court then goes on to assess if the news articles are of interest to the general public, and in this assessment they tie it to the previous practice of ECtHR in relation to the European Convention On Human Rights article 8, ”Right to respect for private and family life”. According to this practice, the quality of the journalism, and whether the publication has sparked or contributed to a public debate, are relevant factors of the assessment. After an assessment of the facts the Supreme Court finds that the quality of the journalism overall is good and that it sparked a public debate. In light of this, the articles were deemed to be of public interest.
Finally, the Supreme Court assesses if the use of the photos were in line with fair practice, and whether the extent of the use was required for the specific purpose. After a concrete evaluation the Supreme Court assesses that the use across all the published articles were in line with fair practice and that the extent was required for the specific purpose.
The judgement clarifies that one only sparingly may be able to quote entire photographic works, and that such quotation can only be made where such quotation is required for the specific purpose. The basic principle is that the copyright holder should receive remuneration for the use of their work, also where consent is not given beforehand. Consideration must also be given to freedom of speech.
We are appreciative for the clarifications by the Supreme Court in this case, regarding use of whole photographs without consent and remuneration where such use is not purposeful. If the media could quote any and all photographs without being purposeful it could have meant a significant reduction to the creators’ copyright protection. Although Rogstad is entitled to remuneration for the use of the photographs in the articles, the Supreme Court neglected to say anything on the size of remuneration. There is no previous case law regarding the size of such remuneration, and we here at Acapo look forward to the Court of Appeals decision regarding the size of this remuneration in the next part of this copyright-saga.
Link to the judgement in English Link to the judgement in full
For Acapo
Sjur Sølsnes
Foto: Sergio Delle Vedove