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17 June 2010
On March 25 2010 the Supreme Court issued its verdict in a case filed by Norwegian actress Gørild Mauseth and the Norwegian Actors' Association against the Norwegian Broadcasting Corporation (NRK). The case concerned the broadcast of an excerpt from the film Brent av frost (Burnt by Frost), directed by Knut Erik Jensen. The excerpt showed a sex scene in a fishing boat full of fish, which ends with Mauseth appearing frontally nude for two seconds. The Supreme Court found that NRK had violated the right to quote under Section 22 of the Copyright Act by showing the last two seconds.
The scene in the fishing boat was parodied in another Norwegian film, Kill Buljo, and the scenes from both films were broadcast on an NRK talkshow. Mauseth felt offended by the use of her scene and brought a case against NRK. NRK was found liable by the Oslo City Court at first instance in 2008, but on appeal was acquitted by the Borgarting Court of Appeal in 2009.
The Supreme Court found that the excerpt that was used was protected under Section 42 of the Copyright Act, which gives performing artists the exclusive right to their performances. However, this right is subject to certain exceptions. One such exception is the right to use quotations from the work under Section 22, which states that it is legal to quote from a published work "in accordance with proper usage and to the extent necessary to achieve the desired purpose".
The Supreme Court emphasized that the right to quote is of "great, fundamental and practical significance", as well as being "important to spread information and public exchange of views". The purpose is to secure "general discussion of freedom to speech and the exchange of various opinions". The provision is a legal standard, and as such the courts must set the boundaries of what constitutes legitimate quotation.
The basis for the Supreme Court was that the courts must be careful when overruling editorial choices, but the courts may consider whether the press made its choice within the boundaries of good faith and the framework of the ethical principles of good journalism. The Supreme Court said that although Mauseth had opposed the screening, this fact alone could not stop the excerpt from being shown.
The Supreme Court majority of four judges concluded that NRK undoubtedly had the right to show the actual sex scene. However, the last two seconds of the excerpt were unnecessary to achieve the desired purpose. The court found that the excerpt was not dependent on those two last seconds; it noted that although the courts should not take the place of the editor, the last part of the clip was of "no significance, either to illustrate the clip from Kill Buljo or for further discussion in the community".
The Supreme Court also thought that it was doubtful whether NRK had acted in line with good practice, since it was aware from earlier debates in the Norwegian press that Mauseth opposed the use of this scene from the film.
The case defines the limits between freedom of speech, copyright law and the right to quote from an published work. It remains to see whether NRK will bring the case before the Council of Europe Human Rights Court in Strasbourg.
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Tom G Eilertsen