05 December 2008
Ministry of Justice
The protection of e.g. software, computer games, film and music is increased
Intellectual property rightholders to e.g. music, film, literature, computer games and software will be given better possibilities to act against illegal file sharing on the Internet. This is proposed in a bill adopted by the Government and delivered to the Parliament today.
- If the creators of computer games, movies or music lack the possibility of making money on their products, they will not be able to afford hiring the people they need in order for their companies to grow. This Bill gives the creative industry the possibility to grow, says Minister for Justice Beatrice Ask.
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights applies to all types of intellectual property rights, such as copyright, patent, trademark and so forth, in the physical as well as the digital environment.
The Swedish legislation already complies with most of the provisions in the Directive. However, in order to reach full compliance, some amendments needs to be done. Among other things, Sweden has to introduce provisions that give rightholders a right to information on the origin and distribution networks of the goods or services which infringe an intellectual property right. In respect to the enforcement of copyright, the European Court of Justice has stated that the Member States have a certain room for manoeuvre, but the result must be an effective protection also on the Internet. Therefore, it is up to each Member State to decide if rightholders shall be given a possibility to get access to information about the identity of an individual behind an IP-address on the Internet, or if the effective protection should be accomplished in a different way.
In the area of intellectual property rights, the main rule has for a long time been that these rights should first and foremost be upheld by the rightholders themselves, through civil remedies (e.g. damages). Infringements of intellectual property rights can also result in criminal sanctions such as fines or imprisonment, but this is more of a complement to the civil remedies. However, when it comes to infringements on the Internet, it has often been almost impossible for rightholders to make use of the civil remedies. The reason for this is that all you can see on the Internet is an anonymous IP-address. Today, rightholders cannot obtain information about the identity of the person behind the IP-address.
The proposal put forward by the Government will make it possible for a Swedish court, in the same way as in many other countries, to order an Internet Service Provider to give the rightholder information about the identity of the individual behind an IP-address. The information will only be disclosed after a court order. Such an order may be issued if the rightholder has presented sufficient evidence (probable course) that an infringement has been committed from the IP-address in question. The court has to respect principle of proportionality and has to balance the rightholders interest of receiving the information against other interests, such as the integrity of the individual behind the IP-address. This means that the infringement must be of a certain degree in order for the rightholder to obtain the information. This is generally the case when e.g. one movie or one piece of music is made available to the public - e.g. via file sharing - on the Internet, since this typically results in considerable damage for the rightholder. This is also the case when it is a question of more frequent downloading. In such cases, the rightholder will normally get access to the information. However, if it is only a matter of downloading a few works, the interest of integrity will normally prevail. In such cases, the information will not be disclosed. If the person behind an IP-address is disclosed, he will receive information about this after a certain time.
This legislation will, contrary to what is normally the case concerning this kind of provisions, only apply to infringements that have been committed after the legislation has entered into force.
Furthermore, the Government will immediately initiate an evaluation concerning the application of this legislation. The evaluation shall, among other things, include a follow-up on the question whether or not the legislation primarily is used to act against more serious infringements.
The proposal does not - as claimed by some people during the debate in media - give rightholders the authority to act as policemen. It is only a question of creating a real possibility for rightholders to use the civil remedies that already exist in the legislation.
Nor does this mean that the person that holds the subscription behind the IP-address in question automatically will be responsible for illegal activities, e.g. illegal file sharing, carried out by someone via his connection to the Internet. But it will give rightholders a possibility to contact the subscriber and a possibility for the subscriber to prevent further infringements via his connection. If the rightholder wants to go further and obtain a court order obliging a person to pay damages, he has to initiate a proceeding against that person and in this proceeding prove that the defendant has caused the rightholder the damages claimed.