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2006-03-28

Are changes in the Swedish Copyright Law toothless?

The revised Swedish Copyright Law entered into force on July 1, 2005.

The purpose of the revision was, among others, to enable copyright holders to stop the unlawful file-sharing of files, mainly music and movies, on the internet. Does the revised copyright law achieve its purpose?

Obviously, it is not yet possible to answer the question above. The supreme court has yet to decide a file-sharing case in accordance with the revised copyright law, and only two cases have been settled in the lower courts. However, one can already try to draw some conclusions based on the two sentences. It should be stressed however, that both cases tried were based on the file-sharing of one single movie.

In both cases, the court found the evidence presented by the prosecution strong enough for a conviction. In both cases, the defendant was sentenced to pay a fine. Both advocates of the right to file-sharing and advocates of a strong, enforceable copyright law deemed the sentences a success for their side. How is this possible?

In Sweden, a public prosecutor can only force an internet provider to disclose personal information connected to an IP-number if the punishment for the crime for which the prosecutor needs the information exceeds a fine (i. e. conditional imprisonment or more severe). The advocates of free file-sharing thus conclude that since the punishment in the two cases tried stayed at a fine, the public prosecutors will not be able to conduct the investigations needed to prosecute a possible file-sharer, and the information belonging to the relevant internet provider will be inaccessible. Thus, new cases of file-sharing crimes can not be prosecuted due to lack of evidence for the prosecution.

The advocates of a strong copyright law disagree. True, the sentences described above seem to make it difficult to prosecute someone who might be guilty of sharing one or a very limited number of files on the internet. However, the sentences clearly show that the evidence presented by the prosecution was enough for convictions. The fact that the punishment stayed at a fine in the two cases tried does not imply that conditional imprisonment or even more severe punishment is out of the question for more severe crimes, i.e. large-scale file-sharing and/or commercial file-sharing. Thus, the conclusion drawn by the advocates of a strong copyright law is that in more severe cases, the prosecution can indeed demand and obtain information from an internet provider and subsequently prosecute the file-sharer.

As is obvious from the above-stated, it is still very uncertain whether or not the revised copyright law achieves its purpose.  At the end of the day, it will be the courts that have to decide if conditional imprisonment is a likely sentence for any type of file-sharing. If the answer to this is yes, then the public prosecution and the police can focus on this type of crime, and the law will serve its purpose. We will know more when a case of more extensive file-sharing is tried in a court of law.