The Protection of Classics: Collective Claims to Cultural Heritage in Copyright Law
This project applies a cultural heritage perspective on Article 51 of the Swedish Copyright Act, which prohibits the rendering of a classical work ‘in a way that offends the interests of spiritual cultivation’ (SFS 1960:729). This so called ‘protection of classics’ was formulated in the 1950s to protect classical works against derogatory interpretations, such as popular cultural adaptions. More recently Article 51 has been used to prevent the publication of literary works in commercials and in nationalist contexts. The protection of classics reflects changing cultural values, but it also expresses an idea that not only individual authors but also cultural communities have entitlements to culturally significant works. This makes it more closely aligned with a cultural heritage that with a copyright discourse.
Indigenous communities’ claims to have their traditional cultural expressions safeguarded from cultural appropriation have taken a centre stage in the contemporary cultural heritage discourse. The proliferation of such claim makes the protection of classics particularly interesting. The project relies on a discourse analysis that maps what cultural values have underpinned the protection of classics 1956-2020. Following that the protection of classics is related to international cultural heritage regulations and finally, the study discusses whether it can serve as a source of inspiration for new ways to approach collective cultural claims in cultural heritage regulation.
Final report
Aims materials and methods
The goal of this project has been to study the cultural and political significance of §51 of the Swedish copyright law, also known as the protection of classics. The protection of classics is a special provision in Swedish copyright legislation which protects works by deceased authors that are of cultural significance against reproductions that are considered offensive to the public. It was first included in the Swedish copyright act of 1960 and similar provisions were passed in the other Nordic countries at the same time. However, the protection of classics has rarely been utilised and never tried in court until 2021, when the national socialist website Nordfront stood accused of violating § 51 for publishing poems by national romantic poets in a racist and homophobic context. The fact that the court acquitted Nordfront has called the future applicability of the protection of classics into question.
The protection of classics is at odds with common copyright doctrine in many regards, most importantly because it applies to works that are in the public domain and are no longer protected by copyright, and because it only applies to works of particular cultural significance. As such it appears to be a heritage protection cloaked in an intellectual property law. The project has addressed this apparent anomaly of § 51 by asking how and why § 51 was passed, how it relates to Nordic and international legislation as well as to national and international discourses on cultural policy and heritage. These questions have been approached through archival studies of parliamentary proceedings and proposals from the 1920s to the 1960s, and from case studies, including press material, of various occasions when the protection of classics has been evoked between 1961 and 2021.
Most important findings and future research questions
The analysis of how the idea about a protection of classics was articulated and motivated in political proposals and parliamentary debates between the 1920s and the 1960s fond that the protection of classics was actually not such an anomaly. Similar provisions were under discussion in other countries and even considered for inclusion in the international Berne Convention for the protection of Artistic and Literary Works in 1948. Furthermore, for most parts of the 20th century it was not uncommon to consider the safeguarding of cultural heritage as an added benefit of the protection of copyright, and particularly the protection of the author’s moral rights (Fredriksson 2024a).
Secondly, this material implies that the formulation of the protection of classic was closely aligned with the emergence of a national cultural political agenda that promoted public education (folkbildning) thought the dissemination of fine art and literature to the wider public and rejected popular culture and commercialism for corrupting the cultural sensibilities of the youth. As discussed in Fredriksson (2024b) this is shown not only in how similar ideas and rhetoric influence the discourses of cultural policy and the debate on the protection of classics in the mid-20th century, but also in the actors involved. Sigfrid Hansons, prominent social democratic politician, brother of Per Albin Hansson and one of the fathers of a modern social democratic cultural policy agenda, was for instance the first to propose a protection of classics in 1924. A closer look at how and when §51 has been evoked between 1961 and 2020 also implies that it has been utilized largely in line with Sweden’s changing cultural policy paradigm as it has come to take a more liberal approach to popular culture but maintained its reluctance to commercialism (Fredriksson 2024b).
Finally an analysis of the Nordfront case of 2021, where the protection of classics was utilised to counteract a conservative, nationalist use of canonized literary works, suggests that the recent use of the protection of classics reflects a politicization of heritage and cultural policy that has taken place over the last decade. A politicization that is also reflected in the current debates about a national, cultural canon. With the rise of the alt right and the growing focus on identity politics, cultural policy and heritage management face new challenges as the classics no longer need protection against popular culture or commercialism but against contemporary political forces who seek to weaponize heritage for nationalist causes (Fredriksson forthcoming).
This raises several obvious questions about the future of the protection of classics and the possibilities to reach a common understanding of canonized classics in an age of polarization. A less obvious future research question that intrigues me more, however, is the role of Nordic cooperation for the formulation of copyright, and vice versa. For practical reasons this project has come to focus predominantly on the Swedish legislation, but it also includes a brief comparison of how the protection of classics has been phrased in Sweden, Norway, Denmark and Finland (Fredriksson 2024a). The fact that the copyright laws of the 1960s, not only in Sweden but also in Norway, Denmark and Finland, were part of a strategy to harmonize the legislation in the Nordic countries places not only the protection of classics but copyright in general in a regional context. This relation between the rights of authors, heritage and a Nordic cultural and political identity is hitherto unexplored and warrants future examination.
Dissemination and public outreach
Apart from four research articles (Fredriksson 2022, 2024a; 2024b; forthcoming) the result of the project has also been presented in other forms and contexts. Within the academy, the results have been presented at a seminar at the Department of Law at Lund University, at a lecture at the Master's course in Law and Fiction at Stockholm University, and at the conferences Critical Heritage Studies Conference, Galway and The History of Capitalism, Copyright and Cultural Heritage, at Oslo University. Outside the academy, I have also discussed the project in general and the study of the Nordfront case in particular at seminars and lectures with the Swedish Association for Intellectual Property Law and the Swedish Society for Law and Literature. In connection with the Nordfront trial, I have commented on the protection of classics in national media from Sweden and Norway.
Sources:
Fredriksson, Martin (under review): ‘The Politics of Canons and Classics: Heritage and Identity in Swedish Copyright Law’
Fredriksson, Martin (2024a): ‘Moral rights and the protection of classics: A study of §51 in the Swedish Copyright Act of 1960’, Comparative Legal History, 1–32. https://doi.org/10.1080/2049677X.2024.2418680
Fredriksson, Martin (2024b): ‘Protecting the classics in Swedish copyright law: Intellectual property as a cultural policy tool’, International Journal of Cultural Policy,1-14. https://doi.org/10.1080/10286632.2024.2362255
Fredriksson, Martin (2022). ’A Reflection on the Cultural Significance of the Protection of Classics’, Stockholm Intellectual Property Law Review, 5(2), 8-13. https://publicera.kb.se/siplr/article/view/13849
The goal of this project has been to study the cultural and political significance of §51 of the Swedish copyright law, also known as the protection of classics. The protection of classics is a special provision in Swedish copyright legislation which protects works by deceased authors that are of cultural significance against reproductions that are considered offensive to the public. It was first included in the Swedish copyright act of 1960 and similar provisions were passed in the other Nordic countries at the same time. However, the protection of classics has rarely been utilised and never tried in court until 2021, when the national socialist website Nordfront stood accused of violating § 51 for publishing poems by national romantic poets in a racist and homophobic context. The fact that the court acquitted Nordfront has called the future applicability of the protection of classics into question.
The protection of classics is at odds with common copyright doctrine in many regards, most importantly because it applies to works that are in the public domain and are no longer protected by copyright, and because it only applies to works of particular cultural significance. As such it appears to be a heritage protection cloaked in an intellectual property law. The project has addressed this apparent anomaly of § 51 by asking how and why § 51 was passed, how it relates to Nordic and international legislation as well as to national and international discourses on cultural policy and heritage. These questions have been approached through archival studies of parliamentary proceedings and proposals from the 1920s to the 1960s, and from case studies, including press material, of various occasions when the protection of classics has been evoked between 1961 and 2021.
Most important findings and future research questions
The analysis of how the idea about a protection of classics was articulated and motivated in political proposals and parliamentary debates between the 1920s and the 1960s fond that the protection of classics was actually not such an anomaly. Similar provisions were under discussion in other countries and even considered for inclusion in the international Berne Convention for the protection of Artistic and Literary Works in 1948. Furthermore, for most parts of the 20th century it was not uncommon to consider the safeguarding of cultural heritage as an added benefit of the protection of copyright, and particularly the protection of the author’s moral rights (Fredriksson 2024a).
Secondly, this material implies that the formulation of the protection of classic was closely aligned with the emergence of a national cultural political agenda that promoted public education (folkbildning) thought the dissemination of fine art and literature to the wider public and rejected popular culture and commercialism for corrupting the cultural sensibilities of the youth. As discussed in Fredriksson (2024b) this is shown not only in how similar ideas and rhetoric influence the discourses of cultural policy and the debate on the protection of classics in the mid-20th century, but also in the actors involved. Sigfrid Hansons, prominent social democratic politician, brother of Per Albin Hansson and one of the fathers of a modern social democratic cultural policy agenda, was for instance the first to propose a protection of classics in 1924. A closer look at how and when §51 has been evoked between 1961 and 2020 also implies that it has been utilized largely in line with Sweden’s changing cultural policy paradigm as it has come to take a more liberal approach to popular culture but maintained its reluctance to commercialism (Fredriksson 2024b).
Finally an analysis of the Nordfront case of 2021, where the protection of classics was utilised to counteract a conservative, nationalist use of canonized literary works, suggests that the recent use of the protection of classics reflects a politicization of heritage and cultural policy that has taken place over the last decade. A politicization that is also reflected in the current debates about a national, cultural canon. With the rise of the alt right and the growing focus on identity politics, cultural policy and heritage management face new challenges as the classics no longer need protection against popular culture or commercialism but against contemporary political forces who seek to weaponize heritage for nationalist causes (Fredriksson forthcoming).
This raises several obvious questions about the future of the protection of classics and the possibilities to reach a common understanding of canonized classics in an age of polarization. A less obvious future research question that intrigues me more, however, is the role of Nordic cooperation for the formulation of copyright, and vice versa. For practical reasons this project has come to focus predominantly on the Swedish legislation, but it also includes a brief comparison of how the protection of classics has been phrased in Sweden, Norway, Denmark and Finland (Fredriksson 2024a). The fact that the copyright laws of the 1960s, not only in Sweden but also in Norway, Denmark and Finland, were part of a strategy to harmonize the legislation in the Nordic countries places not only the protection of classics but copyright in general in a regional context. This relation between the rights of authors, heritage and a Nordic cultural and political identity is hitherto unexplored and warrants future examination.
Dissemination and public outreach
Apart from four research articles (Fredriksson 2022, 2024a; 2024b; forthcoming) the result of the project has also been presented in other forms and contexts. Within the academy, the results have been presented at a seminar at the Department of Law at Lund University, at a lecture at the Master's course in Law and Fiction at Stockholm University, and at the conferences Critical Heritage Studies Conference, Galway and The History of Capitalism, Copyright and Cultural Heritage, at Oslo University. Outside the academy, I have also discussed the project in general and the study of the Nordfront case in particular at seminars and lectures with the Swedish Association for Intellectual Property Law and the Swedish Society for Law and Literature. In connection with the Nordfront trial, I have commented on the protection of classics in national media from Sweden and Norway.
Sources:
Fredriksson, Martin (under review): ‘The Politics of Canons and Classics: Heritage and Identity in Swedish Copyright Law’
Fredriksson, Martin (2024a): ‘Moral rights and the protection of classics: A study of §51 in the Swedish Copyright Act of 1960’, Comparative Legal History, 1–32. https://doi.org/10.1080/2049677X.2024.2418680
Fredriksson, Martin (2024b): ‘Protecting the classics in Swedish copyright law: Intellectual property as a cultural policy tool’, International Journal of Cultural Policy,1-14. https://doi.org/10.1080/10286632.2024.2362255
Fredriksson, Martin (2022). ’A Reflection on the Cultural Significance of the Protection of Classics’, Stockholm Intellectual Property Law Review, 5(2), 8-13. https://publicera.kb.se/siplr/article/view/13849