Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Infringement occurs when the rights holder’s exclusive right to exploit its work is violated by making copies of the work or making the work available to the public (see Section 2 of the Copyright Act).

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Yes, any person or legal entity that contributes to an infringement may be held responsible for contributory copyright infringement.

In relation to internet service providers (ISPs), in a 2017 Patent and Market Court of Appeal judgment, the court declared that an ISP can be subject to blocking injunction. The court stated that neither a contractual relationship between the intermediary and the third-party infringer nor criminal liability is needed for the grant of an injunction against an intermediary (13 February 2017, PMT 11706-15).

Available remedies

What remedies are available against a copyright infringer?

The court can, according to Section 53b of the Copyright Act, issue an injunction to prohibit an infringing party from continuing to commit, aid or abet an act constituting a copyright infringement. An injunction can also be issued to prohibit an attempt or a prepared infringement.

Section 54 in the Copyright Act stipulates that the rights holder is entitled to reasonable compensation for use of its copyrighted work. If the infringement is committed with intent or negligence, the rights holder is also entitled to additional damages. When determining the amount of the compensation, the following is considered:

  • lost profits;
  • profits made by the infringer;
  • damage to the reputation of the work;
  • moral damages; and
  • the interest of the rights holder in avoiding infringements.

Unless clearly unreasonable, property and profits in connection with the crime (pursuant to the Copyright Act) will be declared forfeited. In lieu of property, the value of the property may be declared forfeited (see Section 53a of the Copyright Act).

The Supreme Court has recently clarified how reasonable compensation and additional damages should be determined. As regards reasonable compensation, the primary basis is an established regular price for the particular kind of use. In the absence of an existing market model, reasonable compensation is calculated through the court’s assessment of the evidence submitted in the case. Reasonable compensation can be either higher or lower than the actual damage or loss suffered. The Supreme Court also noted that additional damages are not awarded to the extent already covered by the reasonable compensation.

According to Section 55 in the Copyright Act, the court can decide that property involved in an infringement should be recalled from the market, altered, destroyed or that some other measures should be taken. The same applies to means of assistance that have been, or are intended to be, used in connection with an infringement.

If it can be reasonably assumed that someone has committed, aided or abetted an infringement, for the purpose of preserving evidence, the court may, in accordance with Section 56a of the Copyright Act, order an infringement investigation to search for objects or documents that can be assumed to be of importance for the inquiry into the infringement.

If a claimant can demonstrate a likelihood that someone has committed an infringement, the court may, under the penalty of a fine, order one or several of the defendants to provide information to the claimant regarding the origin and distribution networks for the goods or services in respect of which the infringement has been committed (see Section 52b of the Copyright Act).

Finally, according to Section 53h of the Copyright Act, the court can order the infringing party to pay compensation for appropriate measures taken in order to distribute information about the judgment in the case.

Limitation period

Is there a time limit for seeking remedies?

The Copyright Act has no limitation period regarding the initiation of civil infringement action. As a consequence, the general 10-year statute of limitations from the accrual of the claim applies. For criminal proceedings, the limitation period is five years, according to Chapter 35, Section 1 of the Penal Code.

Monetary damages

Are monetary damages available for copyright infringement?

See the above question “What remedies are available against a copyright infringer?”

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

In general, the costs (including attorneys’ fees) follow the outcome of the trial. Thus, in most cases the winning party will recover all or a substantial part of its costs, subject to a specific decision by the court in this regard. Compensation for litigation costs is governed by the provisions in Chapter 18 of the Swedish Code on Judicial Procedure.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Copyright infringement may be subject to prosecution by a public prosecutor. Criminal action may, according to Section 59 of the Copyright Act, be instituted only by a public prosecutor if it is in the public interest or if there is a complaint from the rights holder. Should the public prosecutor decide not to commence infringement proceedings, the rights holder can commence criminal proceedings.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Section 52g of the Copyright Act prohibits the deletion or removal of electronic rights management information relating to a work protected by copyright.

Obviously, rights holders have an interest to maintain a state-of-the-art administrative system, inclusive of electronic marks to each copyright protected item.

Prevention measures

How may copyright infringement be prevented?

There are many steps that can be taken in order to prevent infringement, including various technical protection measures. The copyright symbol ‘©’ is not necessary for copyright to apply, but may deter infringers. Likewise, effective copyright monitoring and enforcement may prevent future infringements.

An anticipated cross-border infringement may be dealt with by alerting the Swedish customs authorities.

An ongoing copyright infringement, including certain attempts to commit infringement, may be addressed legally by filing a motion for a preliminary injunction.