Recent developments

Legal developments

Have there been any notable recent legal developments regarding copyright in your jurisdiction, including any regulatory changes and recent case law?

As of January 1 2017 the following developments are noteworthy.

Legislative developments                                                        New rules on exploitation for disabled persons Libraries and other organisations working for the benefit of disabled persons are granted a statutory right to produce audiobooks. New rules in this regard were set out in the Copyright Act and entered into force on July 1 2017 (Swedish Books of Statute (SFS) 2017:323).

Making and distributing copies within archives and libraries Certain archives and public libraries have a right to copy and distribute works with a view to preserving them. New rules were enacted in the Copyright Act and entered into force on July 1 2017 (SFS 2017:323).

Mediation in copyright disputes Parliament has replaced the 1980 Act on Mediation in Certain Copyright Disputes with a new act governing mediation in the field of certain copyright disputes. The 2017 Act on Mediation in Certain Copyright Disputes (SFS 2017:322) is in essence a linguistic and structural revision of the 1980 act. Some administ­rative adjustments have been made (eg, a transfer of specific tasks on mediation from the govern­ment to the Patent and Market Court). The new act includes precise rules concerning the choice of mediator. Only a person who is impartial and otherwise suitable for the task may be appointed as a mediator. Other reforms have also been introduced – for example, on the length of the mediation period. The new act entered into force on July 1 2017.

Act on collective management of copyright The 2016 Act on the Collective Management of Copyright (SFS 2016:977) was introduced in order to implement Directive 2014/26/EU on collective rights management and multi-territorial licensing of rights in musical works for online uses into national law.

In short, the new act largely corresponds to the directive. In the preparation of the bill to Parliament, it was generally believed that more far-reaching national regulations could lead to competitive disadvantages for organisations in this field established in Sweden. The new act includes many detailed provisions, which seek to enhance transparency, decision-making procedures, the management of collected funds and equitable terms and conditions in licensing agreements concluded between collecting societies and users.

The new act entered into force in April (in part) and July 2017 (in full).

Case law Private copying compensation During 2009 and 2010 Sony Mobile imported the Model W 715 Walkman smartphone into Sweden. The phone was sold with an 80 megabyte internal memory and an additional and separate eight gigabyte external memory. The model included numerous functions, including a media player able to copy music and film.

Copyswede, a Swedish collecting society, requested that Sony Mobile pay a private copying compensation of Skr3.50 (approximately €0.35) per gigabyte, per phone. The claim was based on specific statutory rules on private copying compensation in the Copyright Act. Sony Mobile contested the claim and argued that, among other things, the aforesaid rules were not applicable, since the external memory card and phone were separate items not to be regarded as a single unit and thus not designed for private copying.

On December 29 2017 the Supreme Court ruled largely in favour of Copyswede. The court concluded that the combination of two items (ie, the phone and an external memory) did not disqualify it from the aforesaid rules. As to the question of the size of compensation, the Supreme Court reduced the sum claimed by Copyswede since the phone had many functions in addition to private copying.

In its reasoning regarding equitable compensation, the Supreme Court referred to the European Court of Justice’s ruling in Hewlett-Packard Belgium (C-572/13, EU:C:2015:750).

Criminal penalties for copyright infringement In June 2017 a person was charged with, and found guilty of, criminal copyright infringement. According to the courts, he had on 30 occasions between May 2011 and January 2012 illegally made 125 copyright protected films and television series publicly available. The films were publicly accessible until January 2013. In addition, between 2012 and January 2013, he had participated in the administration of an illegal file sharing service, Swepirate.

On June 12 2017 the Supreme Court held that the crime in this case was punishable by a six-month prison sentence. When meting the punishment, the court underlined that the offence had a high degree of culpability, but that it had not been established that the culprit’s illegal behaviour was of a commercial character. Free alteration of photos In another Supreme Court case, a photographer had followed the person suspected of the murder of Swedish Prime Minister Olof Palme in 1986. One of the photographer’s photos, a close up of the suspect, had been widely used by Swedish mass media. An artist later used the photo as a model for a painting named Swedish Whipping Boys. The painting depicted the suspect, based on the photo, in a desolated landscape alongside a goat with a blue and yellow ribbon in its horns. The painting was exhibited at the Swedish Museum of Modern Art and posters of the painting were sold in the museum shop.

The photographer claimed that the artist had infringed his copyright in the original photo by creating the painting. The artist disagreed.

Following a detailed analysis of the law, the painting and the photo, on February 21 2017 the Supreme Court held that:

  • the painting was created in free connection with the photo;
  • the artist had created a new and independent work; and
  • the artist’s copyright was not subject to the right in the photo.

Technological developments

Have there been any notable technological advances or developments to assist copyright owners in protecting and enforcing their rights?

Most rights holders and rights holders’ organisations use digital means to manage matters relating to copyright. However, with few exceptions, there are no specific statutory rules on the use of electronic or digital services in this regard.

Legal framework

Domestic law

What is the primary legislation governing copyright in your jurisdiction?

The Copyright Act (ie, the 1960 Act on Copyright in Literary and Artistic Works (Swedish Books of Statute 1960:729)), as amended, is the primary legislation governing copyright in Sweden.

International law

Is your jurisdiction a party to any international agreements relating to copyright?

Sweden has signed and ratified a number of international treaties in the field of copyright and neighbouring rights, most notably the 1886 Berne Convention, the 1952 Universal Copyright Convention, the 1996 World Copyright Treaty and the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled.

With regard to neighbouring rights, mention should be made of the 1961 Rome Convention, the 1971 Phonograms Convention, the 1996 World Intellectual Property Organisation Performances and Phonograms Treaty and the 2012 Beijing Treaty on Audiovisual Performances.

Sweden is also a member of the World Trade Organisation and party to the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods.  

Online and digital regulation

Are there any legal provisions specifically covering digital and online content?

Section 12 of the Copyright Act explicitly excludes private copying producing of digital contentcopies of digital compilations.

Section 16 of the Copyright Act provides libraries with a right, in specific situations, to digitalise works with a view to preserve such works.

Section 23 of the Copyright Act excludes digital reproduction of works of fine art in connection with critical presentations.

Sections 26l and 26m of the Copyright Act on private copying compensation explicitly apply to digital media.

Section 52d of the Copyright Act prohibits the unauthorised circumvention of any digital lock which prevents or limits the making of copies of a work protected by copyright.

Online content is not subject to specific statutory regulations in the Copyright Act. The act nevertheless applies when copyrighted works are made available online.

Government authorities

Are any government authorities charged with regulating and enforcing copyright law?

With the exception of the Swedish Patent and Registration Office, which is entrusted to monitor organisations subject to the 2016 Act on the Collective Management of Copyright, no government authorities are specifically charged with regulating and enforcing copyright law.

Protection and ownership

Copyrightable works

What works are eligible for copyright protection in your jurisdiction?

In principle, any original physical expression of literary or artistic work may be subject to copyright protection. According to a non-exhaustive list in Section 1 of the Copyright Act, such work may be a:

  • fictional or descriptive representation in writing or speech;
  • computer program;
  • musical or dramatic work;
  • cinematographic work;
  • photographic work or another work of fine art;
  • work of architecture or applied art; or
  • work expressed in some other manner.

Section 1 also states that “maps and other works of a descriptive nature executed as drawings, engravings, or in a three-dimensional form, shall be considered as literary works”.

In addition, Section 1 explicitly states that provisions on computer programs will mutatis mutandis apply to preparatory design material.

Are there any special provisions for the protection of non-artistic works (eg, software and databases)?

As Section 1 explicitly covers computer programs, which includes software, no extra provisions exist in order to grant protection for software. Computer programs are nevertheless subject to special provisions, for example, in order to reduce limitations on copyright). For example, the right to copy for private use does not apply to computer programs.

Databases may be subject to copyright protection pursuant to Section 1. In addition, Section 49 of the Copyright Act includes a provision designed to protect databases that compile a large amount of information or which are the result of a significant investment. The rights holder has an exclusive right to make copies of the product and make it available to the public. 

Are any works explicitly excluded from copyright protection?

According to Section 9 of the Copyright Act, copyright does not subsist in

  • laws and other regulations;
  • decisions by public authorities;
  • reports by Swedish public authorities; and
  • official translations of texts mentioned under Sections 9(1-3).

Section 10 excludes copyright in data chips.

Related IP rights

Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?

Yes, the assessment under Section 1 of the Copyright Act is in principle independent from the applicability of other IP rights.

Establishment of rights, registration and deposit

Establishment of rights

How is copyright established in your jurisdiction? Is registration, deposit or any other formality required?

Under Swedish law, copyright is in principle established on creation. There are no requirements on registration, deposit or any other formalities.

Registration and deposit – procedure and effects

What is the procedure for copyright registration and deposit (whether mandatory or voluntary)?

Under Swedish law, copyright is subject to no formal procedure for registration or deposit, be it mandatory or voluntary. A copyright holder may display his or her work for someone (eg, a notarius publicus in order to secure evidence), but such measure has no formal effect.

If voluntary, what are the benefits of registration/deposit?

N/A.

Ownership

Eligibility

Who may own copyright in a work?

Any natural and legal person can be a holder of copyright. However, moral rights are not vested in legal persons.

Joint and collective ownership

What rules and restrictions govern the joint or collective ownership of a copyright work?

Section 6 of the Copyright Act states that copyright will belong to the authors jointly, if a work has two or more authors and where the contributions do not constitute independent works.

Each author may dispose of his or her rights and bring an action for infringement. However, the use of a copyrighted work is subject to mutual consent between the joint holders.

Employee and commissioned work

What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?

Although the Copyright Act includes a chapter on the transfer of copyright, rules governing the relationship between the employer and employee or independent contractor are few. That said, one specific rule should be observed: Section 40a presumes that copyright in a computer program created by an employee as a part of his or her tasks or following instructions by the employer is transferred to the employer.

The legal principles on the transfer of copyright with regard to employees and commissioned work was discussed by a legislative commission (SOU 2010:24). The commission forwarded a proposal for the codification and definition in the Copyright Act of the ‘rule of thumb’, a principle developed in Swedish case law. The commission suggested that an employer would be given a limited but exclusive right to use works created in the framework of employment relationships. However, to date, the government has not forwarded any proposal for statutory amendments in that regard.

Exercise of rights

Owners’ rights

What rights are afforded to copyright owners (including rights to use and limit the use of the copyrighted work)?

Even though the language of the Copyright Act implies otherwise, the main right afforded to a copyright holder is negative. Rights holders may limit the use by others of a copyrighted work. Another vital right vested with the copyright holder is the right to receive reasonable compensation and, in some cases, damages. A third important right for creators is moral rights. Moral rights include the author or artist’s right to have his or her name stated when copies are made of a work, or when it is made available to the public. Further, a work may not be altered in a manner which is prejudicial to the author's literary or artistic reputation or to his or her individuality, nor may it be made available to the public in such a form or in such a context as is prejudicial in the manner stated.

Are there any limits or restrictions on the rights holder’s exercise of its rights, including any fair use allowances and parody exceptions?

The limitations of copyright are addressed in Chapter 2 of the Copyright Act. The limitations and exceptions listed therein are exhaustive. However, case law must be taken into account. For example, some Swedish courts have expanded the definition of ‘newspapers’ to include not only printed papers, but also websites run by newspaper companies – albeit this has not been confirmed by precedent.

Chapter 2 does not spell out a general fair use rule.

As to parodies, such an expression is regarded as a new work created in free connection with the original work and therefore not dependent on a statutory exception.

Limitations on copyright listed in Chapter 2 address, for example, temporary copying as a part of an integral technical process, private copying, quotations, copying for people with disabilities and for educational purposes, for libraries and archives, use in news reporting, use of public office documents and adaptations of computer programs. Some limitations entitle the copyright holder to receive reasonable compensation.

Ancillary rights

What ancillary or neighbouring rights arise in relation to copyright (if any)? Are there any rules or restrictions on their exercise?

Ancillary and neighbouring rights in relation to copyright are governed by Chapter 5 of the Copyright Act. Rules on neighbouring rights apply to, for example, performing artists, television and radio companies, producers of recordings and sound images, producers of catalogues and databases and photographers who have prepared photos (regardless of the originality of the photo).

In short, the restrictions applicable to neighbouring rights are similar to those that apply to original works subject to copyright pursuant to Section 1 of the Copyright Act.

The rules are detailed for each type of neighbouring right and the technique in the text is based on a large number of cross references.

Duration

When does copyright protection begin and what is the duration of protection?

Copyright protection arises automatically as soon as the work is created and subsists until 70 years have passed since the author’s death. As regards a cinematographic work, copyright protection lasts until 70 years have passed since the death of the last living principal director, author of the screenplay, author of the dialogue or composer of the music specifically created for the work. Copyright in musical work with lyrics lasts until 70 years have passed since the death of the last living composer or lyricist, if music and lyrics have been created specifically for the work.

A work that has been made public without stating the author’s name is copyright protected until 70 years have passed since the year in which the work was made public.

The duration of protection for neighbouring rights is 50 years. The starting point for the protection varies depending on the right in question. The duration of protection for catalogues and databases is 15 years from the year in which the product was produced.

In addition, there are specific rules on duration in specific cases and for neighbouring rights.

Transfer, assignment and licensing

Transfer and assignment

What rules, restrictions and procedures govern the transfer and assignment of copyright? Are any formalities required to secure the legal effect of the transfer or assignment?

Under Swedish law, copyright is regarded as property. The copyright holder is entitled to freedom of contract and copyright can, with an exception for moral rights, be transferred, in whole or in part, or licensed (see Section 27 of the Copyright Act). Under Section 28, the person to whom a copyright has been transferred may not alter the work or transfer the copyright to others, unless otherwise agreed. One exception from this principle exists where the copyright forms part of a business activity; in that case, the applicable party (eg, an employer) may transfer the copyright together with the business activity.

No formalities are required to secure the legal effect of a transfer or an assignment.

Licensing

What rules, restrictions and procedures govern copyright licensing?

Section 28 of the Copyright Act states that in the absence of an agreement to the contrary, the person to whom a copyright has been transferred, which includes licences, may not alter the work or license the copyright to others.

In addition, the act includes statutory provisions on, for example, film and book publishing contracts. Mention should also be made of the extended effect of collective licences (see Chapter 3a of the Copyright Act).

Are there any special provisions governing sub-licensing?

According to Section 28 of the Copyright Act, a licensee cannot sub-license copyright in the absence of an agreement to the contrary.  

What collective licensing bodies operate in your jurisdiction and how are their activities regulated?

There are several collective licensing bodies operating in Sweden – for example:

  • the Visual Copyright Society;
  • Bonus Copyright;·      the Swedish Performing Rights Society; and
  • STIM, a Swedish collective management organization for music creators; and
  • the Swedish Artists and Musicians Interest Organisation.

The Patent and Registration Office is in the process of compiling an exhaustive list of all registered collective licensing bodies.

The collective licensing bodies activities are regulated in the Act on Collective Management of Copyright (Swedish Books of Statute 2016:977). The Patent and Registration Office is entrusted to monitor collective licensing bodies and register new ones.

Enforcement

Jurisdiction

Which courts are empowered to hear copyright disputes?

According to Section 58 of the Copyright Act, the Patent and Market Court is the exclusive venue for all copyright cases that are not to be handled in accordance with the Labour Disputes Act (Swedish Books of Statute 1974:371).

Infringement

What acts constitute copyright infringement in your jurisdiction (including with regard to online and digital content)?

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).

Is contributory infringement recognised in your jurisdiction (including liability for internet services providers and other online/digital actors)?

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 (February 13 2017, PMT 11706-15).

Actions

What actions can be taken against copyright infringement (eg, civil, criminal or administrative), and what are the key features and requirements of each?

To enforce its rights, a rights holder can commence civil proceedings (for injunctions, please see Injunctions and Remedy below).

Copyright infringement may also 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.

A copyright holder may also submit an application to the Swedish Customs Authority for infringing works to be seized and confiscated by Customs (please see Customs enforcement below).

Who can file a copyright infringement action?

The author, its successor in title or a licensee with an exclusive right may file for infringement actions.

What is the statute of limitations for filing infringement actions?

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.

What is the usual timeframe for infringement actions?

Typically, proceedings before the Patent and Market Court take between 12 and 24 months. Unsurprisingly, the time varies depending on the complexity of the case. The appeal proceedings at the Patent and Market Court of Appeal will generally take between 12 and18 months.

What are the typical costs incurred in infringement actions?

Attorney’s fees and costs for procurement of evidence.

How are attorneys’ fees handled? Can they be claimed in infringement actions?

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

Injunctions

What rules and procedures govern the issuance of injunctions to prevent imminent or further infringement?

The issuance of injunctions are governed by Section 53b of the Copyright Act. The court may, at the request of the rights holder, issue an injunction prohibiting a party from continuing to commit, aid or abet an infringement.

A preliminary injunction may be issued if the claimant demonstrates a likelihood that a copyright infringement or a contribution to an infringement is taking place and if it can be reasonably expected that the defendant, through the continuation of the act or the contribution thereto, lessens the value of the copyright’s exclusive right. Unless a delay would lead to a risk of loss, the defendant will be given an opportunity to respond before the preliminary injunction is issued. The issuance of a preliminary injunction generally requires the rights holder to provide security to the court. The court will assess whether the security is sufficient to compensate the defendant, should the action ultimately not be successful.

An injunction as well as a preliminary injunction can also be issued to prohibit acts constituting attempts or preparations for copyright infringements as well as actions against or measures contributing to infringement.

Remedies

What remedies are available to owners of infringed copyrights?

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).

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.

Customs enforcement

What customs enforcement measures are available to halt the import or export of pirated works?

The Swedish Customs Authority may, ex officio or subject to an application from the rights holder, seize and confiscate goods that are suspected to infringe copyright protected works. A rights holder can file an application for border measures relating to any or all EU member states. Such an application is valid for one year at a time.

Defence

What defences are available to infringers?

A defendant may argue that:

  • the work does not fulfil the required standard of originality and, as a result, is not protected under the Copyright Act;
  • the duration of copyright protection has lapsed;
  • the disputed object does not fall within the scope of protection of the rights holder’s work; or
  • the plaintiff is not the rights holder.

A defendant may also assert that the use falls within any of the exceptions in Chapter 2 of the Copyright Act. The act has no general fair use rule. Instead, Chapter 2 contains an exhaustive list of limitations and exceptions to the economic rights afforded by the act. If any of the exceptions stated in Chapter 2 apply, use is permissible. In this regard, the defendant may argue that its usage is legal following an implied or explicit consent in, for example, a licence.

Appeal

What is the appeal procedure for infringement decisions?

Decisions issued by the Patent and Market Court can be appealed to the Patent and Market Court of Appeal. The appeal must be made in writing and filed with the Patent and Market Court within three weeks of delivery of the judgment. The hearing of an appealed matter in the Patent and Market Court of Appeal is subject to a grant of leave to appeal. Leave to appeal may be granted only if:

  • it is of importance for the guidance of the application of law that a superior court considers the appeal;
  • reason exists for an amendment to be made to the Patent and Market Court’s decision; or
  • there are otherwise extraordinary reasons to entertain the appeal.

With the exception of criminal cases, Patent and Market Court of Appeal decisions cannot be appealed. Only if it is important for the guidance in the application of the law can the Patent and Market Court of Appeal allow a decision to be appealed to the Supreme Court. The Supreme Court must then also grant leave to appeal before the case can be heard. In practice, the Supreme Court grants leave to appeal if there has been a manifest error in the application of the law or if there is a need for the Supreme Court to establish a judgment that may provide guidance in the application of the law.

Online/digital considerations

Protection and enforcement measures

What special measures and safeguards should rights holders consider in protecting their online/digital content?

There are no statutory rules to be observed in this regard, although 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.