DENMARK: An Introduction to Intellectual Property
Introduction
The Danish economy has emerged from the pandemic in good health, with high levels of economic activity in many sectors, especially the pharmaceutical and broader life sciences industry, and with demand for a skilled workforce. Much of the private sector economic growth is happening organically, with a corresponding transactional focus on mergers and portfolio alignment. Despite favourable macroeconomic conditions, soaring costs in the public healthcare sector are leading to increased cost-reduction pressures from public sector payers in high-value therapeutic areas. These tendencies continue to strengthen the appeal of biosimilars in the Danish market, with regulatory practices shifting in support of allowing switching between biologics.
Aside from certain measures intended to promote Danish cultural life, this is a period of relatively few legislative initiatives relating specifically to IP. The Unified Patent Court having opened its doors is a major development in terms of changes in the broader legal infrastructure relevant to IP rights, but, as in many other jurisdictions, the uptake in cases being filed before the Copenhagen Local Division has been sluggish. In the courts in general, activity in cases related to IP is holding steady with noticeable trends in copyright, trade mark and patent cases.
Promotion of Danish Cultural Life
The Danish Parliament has recently adopted a bill on cultural contribution, which is intended to promote the creation of Danish audiovisual content, including the production of new Danish films, tv series and documentary programmes for broadcast on streaming services. The method applied is the introduction of a cultural contribution scheme, which obliges providers of on-demand streaming services to contribute to Danish content creation whilst compensating service providers that do invest in Danish content.
Once the bill has been granted royal assent, the new Act is expected to enter into force as of 15 January 2024 and the first economic contributions will become payable in 2025 on the basis of revenues generated by streaming service providers during 2024.
Trends in IP Litigation
IP litigation before the Danish courts continues to be dominated by applications for preliminary injunctions (PIs). Of particular relevance in this area is the fact that it is a characteristic of the Danish legal system that first instance PI hearings offer the parties an opportunity for a full hearing of all arguments, backed up by expert evidence, and the opportunity to conduct cross-examination.
Freedom of Speech vs IP Rights
Several cases, PI cases as well as main cases, before the Danish courts in recent years have explored the balancing of IP rights on the one hand and freedom of speech of media and artists on the other hand, such as the extent to which artists can incorporate trade marks or original works of art in their works.
Irmapigen (The Irma Girl)
A case decided in 2023 concerned a grocery chain’s rights in “Irmapigen”, a symbol depicting a young, fair-haired girl referred to as Irma that had served for decades as a trade mark for a chain of high-end grocery stores. To much lamentation from members of the public, the owner of the chain, COOP, announced the chain’s closure at the beginning of that year.
An artist created a poster portraying Irmapigen in caricature with a cigarette in her mouth and a spray can in her hand with which she was spraying a derogatory remark about COOP. The poster was published online, and the artist produced and sold merchandise including the image of the poster.
COOP soon applied for a PI against the artist. In the PI proceedings, the Danish Maritime and Commercial High Court held that the artist’s use of the trade mark was a systematic commercial exploitation of the trade mark’s attractiveness. The Court further held that the extent of this exploitation was so substantial that the principle of freedom of speech had to yield for COOP’s rights and interests. Consequentially, a PI against the artist’s use of the trade mark in all his artwork and merchandise products, and an order on him to recall all products using the trade mark from the market, were granted.
The Little Mermaid
A case resulting in a different outcome had its origins in May 2019 when a Danish newspaper published a drawing showing a caricature of the sculpture of the Little Mermaid in Copenhagen’s harbour, which, apart from being considered by many to be a national symbol of Denmark, is a work of art still subject to copyright. The drawing depicted the Little Mermaid with a zombie-like face and had a title that reads “The Evil in Denmark” in English. The drawing accompanied an article about the state of political discourse in Denmark. Sometime later, an image featuring the Little Mermaid wearing a face mask in conjunction with an article exploring the correlation between concerns about COVID-19 infection and political affiliation was published in the same newspaper. Following the publications, the rights holders brought an action for copyright infringement against the newspaper’s editor-in-chief.
The rights holders were successful in the City Court and the High Court (the court of appeal). However, in 2023 the Supreme Court overturned these decisions, ruling that the examples of parody and satire at issue were not copyright infringements. According to the Supreme Court, the parody drawings were to be considered as independent works, despite being very close to the original work.
Notably, the decision from the Supreme Court reaffirmed the existence of an unwritten “principle of parody” in Danish copyright law, which is grounded in longstanding Danish and Nordic tradition and supported by the preparatory works of the Danish Copyright Act and case law. With reference to the EU Court of Justice’s case law relating to the Infosoc Directive (Directive 2001/29/EC), the Supreme Court further stated that the principle of parody should be interpreted in conformity with EU law and that a fair balance between the rights of copyright holders and freedom of speech must be struck.
In this landmark decision for the Danish media’s freedom of speech, the Supreme Court carved out a broader scope for publishing parodies and satires of works protected by copyright, but the decision is also important in that it shows that there are principles of copyright law that have the function of exceptions to the scope of protection even without express statutory basis.
The Copyright Levy Case
Another case revolving around the implementation of the Infosoc Directive concerned the scheme for copyright levies on recordable media. In the period before 2022, when it was replaced by a broader scheme, the system provided for a levy only on loose storage media.
In a 2023 decision, the Supreme Court found that the former scheme was incompatible with EU law for not covering “built-in” storage media, and that EU law had been violated in a manner sufficiently qualified for the Kingdom of Denmark to incur liability under the principles of EU law. However, the court also held that the rights holders had not proven that correct implementation would have led to payment of higher compensation prior to 1 January 2022 and therefore had not proven any loss. The rights holders’ claims for damages were therefore dismissed.
The decision underlines that two general characteristics of Danish law also matter in cases relating to IP rights, namely that it is fair to say that Danish courts are comparatively hesitant to censure the legislative branch and that Danish courts apply a somewhat conservative approach to assessing claims for damages. In this particular case, the IP rights holders encountered a perfect storm in being up against the combined effect of these currents in Danish law.
Danish Patent Litigation
Patents relating to medicinal products have traditionally formed the basis for much of Denmark’s patent litigation, but recent years have seen an increase in high-profile patent cases relating to patents on medical devices and technology in other fields, such as consumer electronics. Moreover, there is a trend towards these patent cases becoming more complex and fought on the basis of more comprehensive and more sophisticated arguments. This can be seen as mirroring the increased maturity and expertise of the Danish Maritime and Commercial High Court in relation to its approach to case management, its judges and the growth in the body of case law.