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Sweden adopted changes to its copyright act, transposing all the provisions of the DSM directive on 30 November 2022. The law entered into force on January 1, 2023.
Procedure:
Realizing that the directive was controversial in Sweden, the Ministry of Legal Affairs opted for a comprehensive implementation process. Before the first ministry memorandum, the Ministry convened a reference group of about 100 stakeholders. These stakeholders were invited to give input on the articles and how to best implement them in the Swedish law. The Ministry divided the articles into 4 or 5 different subgroups, and presented some initial interpretations per subgroup before asking for written feedback. Based on this feedback, the Ministry proposed a ministry memorandum. The ministry memorandum was released in October 2021, and was submitted for open consultation until December 2021. Based on the ministry memorandum and the responses from the consultation, the Swedish Government proposed a draft law in the summer of 2022. The draft law got a green light from the legal council, and was handed over to the parliament. MPs could table motions for amendments until mid-October. The committee on enterprise, which was responsible for the file, reviewed the proposal in November, and after the committee report, a final debate and following vote was tabled in the parliament.
Article 17:
The Swedish implementation of Article 17 contains not only a general requirement not to limit legitimate uses, but also specific ex-ante safeguards for users: the law clarifies that “the user shall have the right, notwithstanding any measures taken by the service provider (...), to make available on the service content which does not infringe copyright” and requires that “automatic blocking methods may only be used to prevent access to content which is likely to infringe copyright with a high degree of probability”.
The transparency provisions are applicable towards users and the definition of platforms is narrowed down (the platform must play an important role in the content market by competing with other types of existing or potential online content services, in order to be subject to these new rules).
On a less positive note, the Swedish lawmaker has introduced the right to make works available for the purposes of caricature, parody or pastiche only in relation to the platforms covered by these new rules.
Other:
The Swedish implementation of the new education exception does not fully comply with Article 5, as it does not apply to the press publishers right. Furthermore, all uses under the new education exception are subject to license availability, which renders the exception practically useless, since extended collective licenses have a strong prevalence in Sweden and there will probably only be a few cases where no educational license is easily available in the market.
Article 14 is implemented in the provision that protects photographic images with a neighboring right. A new sentence was introduced stating that the right does not apply if the main subject of the image is a work of art for which copyright no longer applies.
Significantly, the new provision broadens the scope to "work of art" as compared to "work of visual art" in the DSM directive.
The implementation of Article 15 includes some, but not all the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications and it is clarified that the right does not apply to non-commercial uses by individual users, to acts of hyperlinking nor to the use of individual words and very short excerpts of press publications. However, it is not clarified that the right does not apply to private uses by individual users and that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works. Furthermore, the right is not subject to all the exceptions and limitations to copyright laid out in the national law.
Bonus:
The Swedish law provides that online content-sharing service providers that intentionally or negligently breach their obligations shall be liable for the damages caused to users with such breach. In addition, “where a service provider fails to comply with his obligations (...), a court may impose a periodic penalty payment on the provider to remedy the situation.” An action for an injunction may be brought by a user or by an organisation representing users.
The transposition of the DSM directive in Sweden took effect on January 1, 2023. Sweden was one of few EU countries that gave a negative vote to the DSM in the European Council, so it was unsurprising that the Ministry of Legal Affairs opted for a comprehensive implementation process. Realizing that the directive was controversial in Sweden, the Ministry of Legal Affairs developed an inclusive process with about 100 stakeholders (including civil society organizations) to give input to the Ministry of Legal Affairs on what a successful government proposal would look like, followed by a public consultation and a regular parliamentary procedure.
The Swedish implementation of Article 17 includes a variety of user rights safeguards. In addition to clarifying that the user has the right to make available on online platforms non-infringing content, the national law requires that ACR methods may only be used to prevent access to content which is likely to infringe copyright with a high degree of probability. The national law also foresees transparency obligations towards users, penalties for service providers and compensation of damages caused to users.
On the exceptions’ front, the implementation was far from perfect. The lawmaker introduced the right to make works available for the purposes of caricature, parody or pastiche only in relation to the platforms covered by Article 17. The new education exception (a novelty in a system where extended collective licenses have a strong prevalence) does not fully comply with the Directive, as it does not apply to all the rights covered by Article 5, and licenses take priority for all uses permitted under the exception. Furthermore, the implementation of the new press publishers right is subject to fewer exceptions than similar neighboring rights. On the positive side, following the implementation, the Government launched a public inquiry that will review all exceptions and limitations in Swedish copyright law until November 2023.
Article 14 is implemented by means of an exclusion to the scope of protection of the neighboring right that protects photographic images.
Local partners: Our local partner has been Wikimedia Sverige
For more information please see our implementation tracking page for Sweden.
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