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Thumbnails illegal in Sweden - Judgement in Supreme Court
Staffan Teste
The Supreme Court in Sweden has recently decided that to publish little pictures as small as thumbnails or stamps without the copyright owner’s permission are illegal.
The ruling came from a case in which a homepage producer took pictures from a homepage he hade made and put them on his own homepage as advertising of his production. The small pictures came from a screenshot of the first homepage.
The homepage producer claimed that the pictures were very small and only a little part of the whole homepage. He pointed at a paragraph in the Swedish copyright law that says that if a picture is small and only a part of the background of a picture you can use it for free.
The Supreme Court ruled that the size of the picture has to be compared with the screen dump, not with the whole homepage and compared with the screen dump in itself it was not particular small. The Supreme Court says: "The photos are certainly small but they are not an insignificant part of the whole picture” (that is the screenshot in itself). There is also a special function with the pictures as an example of the homepage producer's ability to combine text and pictures, even if they do not have the purpose to show any content. Taken all together the photographs can not be said to be an insignificance part of the picture".
It is very rare that a case is judged by the Supreme Court in Sweden: only one (1) percent of all cases is allowed to be judged by the Supreme Court. The photographer won in the low court in this case but lost in the middle court, where the picture was found to be too small to have any copyright. A decision in Supreme Court creates a precedent that all courts in Sweden have to follow.
The case has been much debated in Sweden.
Staffan Teste, master of laws, former board member of CEPIC, was solicitor for the photographer in the case. Teste is very satisfied with the outcome:
"The case shows that there are a difference between the copyright law in US and Europe. In Europe it is illegal to use a picture even if the seize is small without permission from the copyright owner. The case also shows that what Google does – capture others copyright works for their own purpose and profit – is illegal according to European law."
Teste works with his own juridical company Bildombudsmannen AB www.bildombudsmannen.se and is also juridical advisor to BLF, the Swedish largest photograph- and picture agency organisation in Sweden and a member of CEPIC. (www.blf.se )
File Attachment
| Attachment | Size |
|---|---|
| Swedish_document_of_the_case.pdf | 53.35 KB |
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I disagree with this
I disagree with this comment:
"In Europe it is illegal to use a picture even if the seize is small without permission from the copyright owner. The case also shows that what Google does – capture others copyright works for their own purpose... and profit – is illegal according to European law."
1) The case is only valid for Sweden, not for Europe. A German or a French court may decide otherwise.
2) The case confirms that thumbnails are reproductions, yes. But it does not say that search machines infringe copyright if they show thumbnails of pictures without express authorization. In fact, the German Federal Sepreme Court has ruled otherwise on April 2010 and has decided in Google's favour, holding that there was an implied consent of the copyright hoder that his/her pictures be found and displayed by search machines as long as they had made their website accessible to search engines and have not used the technological tools to except the works from the search.