A new Swedish regulation concerning copyright enforcement came into force on 1 April 2009. The regulation was introduced in order to complete the implementation of the EU Intellectual Property Rights Enforcement Directive.
While the primary objective of the Directive 2004/48/EC (IPRED) is to harmonise European Member States’ intellectual property legal sanctions generally, this new set of laws has predominantly been perceived in Sweden as a tool to tackle illegal file sharing.
The new regulation has provoked enormous media attention in Sweden, particularly in relation to a new ‘information orders’ instrument.
The regulation of information orders is governed by Section 53 of the Swedish Copyright Act 1960. The amended Section 53(c) of the Act gives holders of rights in copyrighted material the opportunity to request a court information order enabling discovery of the identity of an unknown person who is infringing copyright. According to the Act, holders of rights in copyrighted material have the sole right to distribute that material to the general public. A prerequisite for copyright infringement is therefore that someone has violated that exclusive right.
In order to obtain an information order, the rights holder must prove that a probable cause of a copyright infringement has arisen, but not that the infringement was carried out intentionally or through negligence. The court must also perform a proportionality assessment, whereby the right-holder’s interests in discovering the identity of the unknown party is balanced against the inconvenience or harm that could be caused to the unknown party.