Court addresses copyright assignment in online advertising

Contractual clauses on copyright assignment have been construed narrowly by the Swedish courts using the principle of specification. According to this principle, which is also recognised in other Nordic countries, the assignor of the copyright is presumed to retain any rights not clearly specified in the assignment clause (in particular, if the assignor is a commercially less sophisticated party). For example, the assignment of copyright in a news article may be deemed to transfer the right to publish the article on paper, but not the right to publish the article online.

On 12th March 2013 the Svea Court of Appeal in Stockholm handed down a decision addressing a clause on copyright assignment in the general terms and conditions applicable when advertising on a Swedish online marketplace (Case FT 9986-12).

Background
A consumer had published an advertisement including a photo he had taken on an online marketplace. The company running the online marketplace had subsequently included the consumer’s photo in a banner advertisement which it published on the site. The consumer claimed that in so doing, the company had infringed his copyright to the photo.

The online marketplace’s general terms and conditions included a clause stating: "Copyright: All rights to the text and photo in the advertisement are transferred to [the company].”

Appeal court decision
The Svea Court of Appeal concluded that the copyright assignment clause in the general terms and conditions was effective and stated that:

• The general terms and conditions on the online marketplace were easily available on the website.
• The compilation of terms and conditions was not noticeably lengthy and it was clear what they covered.
• The copyright transfer clause was clear and unambiguous.
• It was possible for individuals to refrain from including photos (or other pictures) in advertisements on the online marketplace.

The court concluded that the company’s use of the photo fell within the scope of the copyright assignment clause set out in the general terms and conditions and, as a result, that the company had not committed an act of infringement.

Implications
The appeal court's decision clarifies that a short and clear-cut copyright assignment clause included in general terms and conditions can be effective and enforceable under Swedish law, even in relation to consumers. The decision indicates that the Swedish courts may be in the process of adopting a more assignee-friendly or buyer-friendly approach when it comes to the interpretation of copyright assignments. In particular, this may be relevant in relation to online services directed towards consumers. However, it remains to be seen exactly where the Swedish courts will draw the line with this potentially emerging buyer-friendly approach.