SWEDEN Law and Practice Contributed by: Helena Rönqvist, Magnus Jonson, Vilma Slättegård and Anna Karlsson, Magnusson Law
within the exclusive rights described in the previous sections. In practice, the most encountered forms of infringement include: • unauthorised reproduction – copying a work in whole or in substantial part, whether digitally or in physical form; • unauthorised distribution – selling, lending or otherwise distributing copies of a work without authorisation; • unauthorised communication to the public – mak- ing a work available online, streaming, or broad- casting without a licence; • unauthorised adaptation – translating, arranging or otherwise modifying a work without consent; and • infringement of moral rights – failing to attribute the author or altering or using the work in a manner that is prejudicial to the author’s honour or reputa- tion. It is important to note that infringement does not require the entire work to be copied; copying a sub- stantial part of a work is sufficient. The assessment of substantiality is both quantitative and qualitative, meaning that even a small portion of a work may constitute infringement if it represents a qualitatively significant element. Civil and Criminal Remedies Where a copyright infringement is established, the available remedies include damages, injunctive relief (both interim and permanent, subject to a penalty of fine), information orders, and security measures such as seizure and forfeiture of infringing goods. There are no statutory damages. A holder of registered intellectual property rights may file an “application for action” with the Swedish Cus- toms, requesting that suspected infringing goods being imported, exported, or in transit through Swe- den be detained. The Swedish Customs may also act on its own initiative to intercept goods suspected of infringing intellectual property rights. Swedish intellectual property legislation imposes crim- inal liability for infringement committed intentionally or through gross negligence. Depending on the serious- ness of the offence, sanctions may include fines or
imprisonment. Criminal charges may be brought by the public prosecutor, if prosecution is deemed to be in the public interest. 3.8 Infringement Tests and Substantiality Copyright protects the creative expression of a work, not the underlying idea itself. This distinction is of par- ticular importance in the context of software. Copyright does not extend to the functions, ideas or algorithms embodied in a computer program; what is protected is the specific form of expression. The decisive fac- tor in assessing whether copyright infringement has occurred is whether the copied elements reflect the author’s own intellectual creation and constitute an original expression of the author’s creative choices. In the case of software, this means that the reproduction of a detailed and original code architecture may con- stitute infringement, even where the individual lines of code differ from those of the original work. 3.9 Collective Management and Licensing Collecting societies in Sweden operate as collec- tive management organisations (CMOs) that license copyrighted works, collect fees and distribute royal- ties to rights-holders. Their operations are regulated under the Act on Collective Management of Copyright (2016:977), and they are supervised by the Swedish Intellectual Property Office. A cornerstone of the Swedish system is the Extended Collective Licensing model. A representative CMO negotiates an agreement with a user that is extended by law to also cover non-member rights-holders within that category. This allows users to obtain a “blanket” licence for large repertoires without contacting each creator individually. The extended collective licensing model in the Copy- right Act can be characterised as a form of compul- sory licence. If a licensing organisation represents a large number of rights-holders, the licence can be extended to rights-holders who are not members, permitting use of their works under the same terms. The Copyright Act provides for various extended col- lective licences that grant a licensee the right to use copyright-protected works. Such licences are avail- able for, among others:
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