Source Code and FoI legislation in Sweden

29 November 2004

Jim Runsten

On 21 June 2004, the Swedish Supreme Administrative Court delivered a judgment to the effect that the source code owned by a public authority had to be released due to the Swedish freedom of information legislation. The case concerned a computer program developed by Stockholm University which facilitated the administrative procedures within the Department of Economics. The production of the computer program had been funded by governmental grants, but to recoup money in order to invest in other development projects the software was also licensed to another university.

Release of the computer program source code was requested under the Swedish freedom of information law, which provides for a right of access to publicly produced documents unless there is an issue of confidentiality. The request was denied by Stockholm University and that decision was appealed to the Swedish Administrative Courts.

The parties were in agreement that the general rule of public access was applicable, so the question was whether or not the information could be kept confidential as part of the authority’s business activities. In order for the authority’s business activities to be covered by confidentiality protection, it must show that it is a profit-seeking business and that the activities within the authority are not solely governed by public law. The Supreme Administrative Court concluded that, as the computer program was used as a tool for administrative procedures within the University, there was no ground for confidentiality based on the business activity of selling computer programs. The fact that one copy of the program had been sold did not change this fact. The Court therefore decided that the source code should be released.

The conclusion reached by the Supreme Administrative Court is in line with a previous decision from 1992 where it was decided that, under certain circumstances computer programs could be regarded as public documents.

The Supreme Administrative Court’s conclusion was explicitly without prejudice to the copyright which subsists in the program. Therefore, the party to whom the source code of the program is released would not be entitled to perform any copyright-restricted act in relation to the material without the right-holder’s consent. (Neither the Swedish private copying exception nor the exception which permits copying for educational purposes applies to computer programs, which may also not be lent in digital form without the right-holder’s consent.)