May Copyright-Protected Diaries Be Archived Without Authorisation? The Danish Supreme Court’s Judgment of 18 April 2024 on the Diary of Arne Herløv Petersen
By Jørgen Blomqvist and Morten Rosenmeier[*]Jørgen Blomqvist is an affiliate professor of international copyright law, and Morten Rosenmeier is a professor of copyright law, both at the Faculty of Law, University of Copenhagen, Centre for Information and Innovation Law (CIIR). This article is a translation of Blomqvist and Rosenmeier, Kan ophavsretligt beskyttede dagbøger arkiveres uden tilladelse? Højesterets dom af 18. april 2024 om Arne Herløv Petersens dagbog, ET 2026.2. The translation was prepared by the undersigned, Jørgen Blomqvist, based on an AI-assisted translation draft by law student Lucas Oliver Abildgaard. Many thanks to Lucas for the help. Together with our university colleagues Trine Baumbach, Thomas Riis, and Jens Schovsbo, we have submitted two statements of support in connection with the Danish Authors’ Association’s applications for legal aid before the High Court and the Supreme Court. In addition, Morten Rosenmeier has advised the Danish Authors’ Association pro bono on the copyright issues raised by the case concerning Arne Herløv Petersen’s diary, including by way of a statement dated 19 March 2013, prepared for use in the Association’s complaint to the Parliamentary Ombudsman. Sections 1, 2, and 4 of this article draw upon and reuse analyses, references, and other text from Rosenmeier, Viger ophavsretten for arkiv- og forvaltningsret? Indspark i sagen om Arne Herløv Petersens dagbog, ET.2024.17. Furthermore, section 4.3.7 reuses text, including case references, from Schovsbo/Rosenmeier/Salung Petersen, Immaterialret (2024), Chapter 2. sections 1, 2, and 4 also contain new material. Section 4 is newly written. Arne Herløv Petersen has consented to the inclusion of his name and the details of the case in this article.
1. Subject and Structure of This Article
A large number of documents handled by public authorities during administrative proceedings are protected by copyright. Generally, it collides with copyright if authorities copy the material, transmit it to other authorities, or otherwise process it, including, for instance, by facilitating citizens’ right of access. The same applies if the material is archived in a manner that allows future generations to access it. See further section 2 below. Accordingly, copyright solutions are needed to ensure that copyright does not obstruct public administration, including archiving.
In Denmark, the issue has been approached as follows:
