Legislation and enforcement

Relevant legislation

What is the relevant legislation?

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.

Enforcement authorities

Who enforces it?

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.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

Section 12 of the Copyright Act explicitly excludes private copying of digital content.

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.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

Yes – although not codified in the Copyright Act, the Supreme Court has made a wide interpretation of the special jurisdiction rule, meaning that Swedish courts have jurisdiction in internet-related copyright infringements if (among other things) the online content is or has been accessible in Sweden, thereby confirming the ECJ’s case law concerning the EU Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (44/2001).

Agency

Is there a centralised copyright agency? What does this agency do?

No, although the Patent and Registration Office has certain responsibilities in relation to collective licensing bodies.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

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.

Rights covered

What types of rights are covered by copyright?

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.

Excluded works

What may not be protected by copyright?

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.
Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

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.

Architectural works

Are architectural works protected by copyright? How?

Yes, all original artistic works are protected by copyright, including works of architecture, provided that they are constructed in Sweden. The protection relates to the expression of the architectural idea as such, regardless of whether it is formed in a blueprint or as a constructed building.

Performance rights

Are performance rights covered by copyright? How?

According to Section 1 of the Copyright Act, copyright is extended to dramatic works which include theatrical plays but also (for example) dance choreographies.

Under Section 45 of the Copyright Act, performing artists have the exclusive right (neighbouring to copyright) to exploit their performances of a literary or artistic work or of an expression of folklore. The right relates to the performance as such, regardless of the quality level, meaning that less artistic deliveries also enjoy protection. Such performance right is typically not afforded to imitators, illusionists, acrobats, circus artists or athletes.

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

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.

Moral rights

Are moral rights recognised?

Yes. 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.

Copyright formalities

Notice

Is there a requirement of copyright notice?

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

What are the consequences for failure to use a copyright notice?

Not applicable.

Deposit

Is there a requirement of copyright deposit?

There are no requirements on registration, deposit or any other formalities.

What are the consequences for failure to make a copyright deposit?

Not applicable.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

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.

Is copyright registration mandatory?

Not applicable.

What are the fees to apply for a copyright registration?

Not applicable.

What are the consequences for failure to register a copyrighted work?

Not applicable.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

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

Employee and contractor work

May an employer own a copyrighted work made by an employee?

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.

May a hiring party own a copyrighted work made by an independent contractor?

See the above question “May an employer own a copyrighted work made by an employee?”

Joint and collective ownership

May a copyrighted work be co-owned?

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.

Transfer of rights

May rights be transferred?

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

May rights be licensed?

Yes. 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 compulsory licences? What are they?

Yes, the Copyright Act includes a number of provisions on compulsory licenses, including Section 18 on the making of composite works for use in educational activities and Section 47 on the use of sound recordings for public performances (neighbouring right).

Are licences administered by performing rights societies? How?

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

  • the Visual Copyright Society;
  • Bonus Copyright Access;
  • the Swedish performing Rights Society; 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.

Termination

Is there any provision for the termination of transfers of rights?

No. The provisions on transfers of rights in Sections 27 to 42 of the Copyright Act are non-compulsory. General principles of contract law apply, along with specific principles on the construction of agreements in the field of copyright. Obviously, the language of a transfer is vital as to the scope and limitations of an assignment.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

No. A copyright assignment agreement may be notarised, although there is no statutory requirement in this regard.

Duration of copyright

Protection start date

When does copyright protection begin?

Copyright protection arises automatically as soon as the work is created.

Duration

How long does copyright protection last?

Copyright protection 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.

Does copyright duration depend on when a particular work was created or published?

See the above question “How long does copyright protection last?”

Renewal

Do terms of copyright have to be renewed? How?

No, terms of copyright do not have to be renewed. As previously noted, copyright protection arises and continues to exist without registration.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Since the last extension in 1995, copyright subsists until the end of the 70th year after the year in which the author died (with a few exceptions).

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.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

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.

What obligations are imposed by your country’s membership of international copyright conventions?

Conventions and other international treaties which have been signed and ratified by Sweden do not automatically become part of Swedish law. In order for such treaty obligations to be applicable and binding before Swedish courts and authorities, they must be incorporated into Swedish law. The Copyright Act includes a number of obligations imposed by the aforementioned conventions.

UPDATE & TRENDS

Recent developments

Are there any emerging trends or hot topics in copyright regulation in your jurisdiction? Has there been any new copyright legislation passed or proposed within the last 12 months?

As of 1 January 2018, the following developments are noteworthy.

Legislative developmentsData privacy implications under GDPRThe Copyright Act includes statutory provisions on injunctions to produce information about copyright infringing activities. These rules have been subject to minor changes due to General Data Protection Regulation (GDPR) provisions regarding the use of information obtained through such injunctions. The amendments were enacted in the Copyright Act and entered into force on 25 May 2018 (Swedish Books of Statute (SFS) 2018:272).

New reporting system regarding resale rightAll art market professionals must report sales subject to resale right for the benefit of the author of an original work of art (droit de suite). Such reports must be made without prior request from the collective management organisation. New rules in this regard were set out in the Copyright Act and entered into force on 1 July 2018 (SFS 2018:604).

Further copyright exceptions to benefit visually impairedParliament has expanded the exceptions set out in the Copyright Act which guarantee that persons with disabilities can access works protected by copyright. The revisions implement EU Directive 2017/1564 and entered into force on 11 October 2018 (SFS 2018:1099).

Case lawNewspaper publication of private Facebook photographsA Swedish politician sued a newspaper for copyright infringement following the publication of several photographs of herself and a prominent party colleague in an article on the newspaper’s website and Twitter page. The photographs had been taken from the politicians’ private Facebook page and showed, among other things, the two politicians standing next to an Israeli military vehicle. The publication was made in the middle of an ongoing election campaign in which one of the politicians was a candidate to become the new leader of a political party represented in Parliament.

The Patent and Market Court of Appeal held that the publication of the photographs fell under an exception in the Copyright Act, which states that works of fine art that have been made public may be reproduced in a newspaper in connection with a report on a current news event. The court held that the politician had made the photographs public by posting them on her Facebook page, without restricting the photographs to be visible only to her friends. Both the newspaper’s website and Twitter account were considered to be newspapers for the purposes of the Copyright Act.

Passive storage of previously licensed softwareIn 2002 Malmö had acquired a licence to use a healthcare software from an IT software company. Following the termination of the licence agreement in 2013, the city continued to store a backup copy of the software without making any other use of it.

The Supreme Court held that the creation of the backup copy constituted lawful use of the licensed software and noted that neither the Copyright Act nor its preparatory works stated that such copies must be deleted on the expiration of the licence. The court thus concluded that the mere passive storage of the software was not copyright infringement.

Warehouse storage of copyright-infringing productsCriminal proceedings were brought against a shop owner who sold copyright-infringing garments and accessories with rock music motifs. He also had two storage facilities from which he regularly re-stocked his shop with such goods.

The Supreme Court noted that storage of copyright-protected goods for the purpose of sale is not expressly prohibited under Swedish law. After obtaining a preliminary ruling from the Court of Justice (Case C-572/17, Imran Syed, EU:C:2018:1033), the Supreme Court found the shop owner liable for criminal copyright infringement of the merchandise in both storage facilities. Applying the preliminary ruling, the court held that the stored goods were identical to those offered for sale and that they were intended for sale.