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).
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 (13 February 2017, PMT 11706-15).
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.
What rules and procedures govern the issuance of injunctions to prevent imminent or further infringement?
The issuance of injunctions is 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.
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).
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.
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.
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.
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.