The Swedish implementation of the IPRED

The IPRED (Intellectual Property Rights Enforcement Directive) Directive was implemented in the Swedish legal system on the 25th of February 2009 through amendments to existing intellectual property (IP) laws. A couple of publishing companies filed the first court case based on the changes made to the legislations to the Solna District Court on the 1st of April. The court reached a verdict whereby the defendant (an Internet Service Provider) was to release the contact details of a customer to the plaintiff. The defendant made an appeal against the decision on the 15th of June.

In a couple of posts to come, I will provide an English summary of the different parties claims and the decision of the District Court. Before that, however, I feel that there is a need to provide an overview of the Swedish implementation of the Directive, and in particular section 53c in the law about IP rights which is the key section around which the whole case is built.

Directive on the intellectual property rights

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (IPRED of the Directive) aims at harmonizing certain aspects regarding the enforcement of IP in the EU Member States (please refer to the text of the Directive or the Wikipedia article for details about the Directive itself).

Implementation into Swedish law

Much of the protection for copyright holders prescribed by the Directive was already implemented in the Swedish legal system so the main focus of the implementation of the Directive into Swedish law relied on Article 6 of the Directive. This Article entitles an interested party to oblige an opposing party to present evidence about an infringement which lays in the opposing party’s control (for example, force an internet service provider to give up information about a customer who made available copyrighted material over the internet without the copyright holder’s consent).

The implementation process also attempted to clarify the right of an infringed IP holder (or it’s representatives) to collect, store and handle (as defined by other directives) personal information collect about those infringing on their rights. Such information handling is, however, still be supervised by a governmental authority.

The courts were also given the right to order a violator of IP rights to, at their own cost, publicly distribute the outcome of the court case (to for example newspapers). The courts were also entitled to use fines as deterrents to stop planned and/or attempted infringements from being completed and clarifications were made about contributing to an infringement.

Clarifications to the legislations dealing with damages to be paid were also made along with language changes to better correspond to the terminology used by the Directive.

Affected Swedish laws

The Swedish implementation of the IPRED affected the following laws:
Lag (1960:729) om upphovsrätt till litterära och konstnärliga verk (Law on intellectual property rights) – sections 53b, 53c-h, 54, 55, 56, 56a
Varumärkeslag (1960:644) (Trademark law) – sections: 37b-g, 38, 41, 41a, 68
Patentlagen (1967:837) (Patent law) – sections: 57 b-59 a, 61
Mönsterskyddslagen (1970:485) (Law about the protection of patterns) – sections: 35b-37 a
Firmalagen (1974:156) (Company law) – sections: 15, 18b-g, 19-20
Lagen (1992:1685) om skydd för kretsmönster för halvledarprodukter (Law about the protection of topographies and semiconductor products ) – sections:9b-h, 11-12a
Växtförädlarrättslagen (1997:306) (Law about the protection of the right to sorts of plants) – sections: chapter 9 sections 2, 3, 6-7 a, 8, chapter 9 section 5a-f, chapter 12 section 2.

Translation of section 53c in the Swedish copyright law

As the court case in question is about IP law the addition of section 53c to the Swedish Law on intellectual property rights (copyright law) is of special interest. As such, below is a quick translation of named section:

53 c § In the event that the applicant presents a reasonable level of evidence that someone has committed an infringement according to section 53 [infringement of the intellectual property right of someone], the court may make a decision, making the defendant liable to a fine if not carried out, to make one or several of those named in paragraph 2 hand over information to the applicant about the origins and distribution network for the merchandise or services which have been infringed (information injunction). Such a decision can be taken on request of the holder of the intellectual property right or their representatives or others authorised to those rights. The decision can only be taken if the information can be presumed to facilitate the investigation of an infringement regarding the merchandise or services.

The obligation to provide such information comprises those that
1. have carried out or assisted in carrying out the infringement,
2. at a commercial scale have had the said merchandise at their proposal,
3. at a commercial scale have used the infringed service,
4. at a commercial scale provided an electronic communication service or other service that was used in connection with the infringement, or
5. have been identified by someone in points 2-4 as having part taken in the manufacturing or distribution of a merchandise or the providing of a service as part of the infringement.

Information about the merchandise’s or service’s origins or distribution network may in particular refer to
1. names and addresses of the producers, distributors, suppliers and others who have possessed the merchandise or provided the services,
2. names and addresses of the whole-sales persons,
3. information about the quantities produced, delivered, received or ordered and which prices were decided upon for the merchandise or services.

The provisions of paragraphs 1-3 shall also be applied in questions of attempted infringement or preparation to infringement as provided by section 53.

In short the above section entitles a copyright holder to have the court order an ISP to give the copyright holder information about who used a particular IP address that was used to infringe on the copyright holder’s IP rights.

Concluding comments

The implementation of the IPRED hasn’t been an easy process in Sweden. There was much opposition to it from all sides and it continues to be opposed by not only political parties and citizens but also service providers who question the implementation process of the case and the legality of the current phrasing used in the Swedish laws. More about this in a coming post.

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