Bulk distribution of demand letters for file-sharing of films

Clarification of the role of the Patent and Market Court.

There are currently reports in the media – especially SVT [a public service broadcaster] – about mass distribution of demand letters to private individuals for alleged unlawful file-sharing of films. According to information received, these demands may refer to the Patent and Market Court. Many people who have received demand letters also turn to the Court. The Court therefore wishes to clarify some points.

The Patent and Market Court has nothing to do with the demand letters concerned. However, the Court deal with matters concerning 'the right to information' and the demand letters may have some link to orders issued by the Court in these matters.

Legislation and procedure concerning the right to information

Various laws protecting intellectual property rights - including the Copyright Act - contain rules about the right to information. This legislation is based on an EU Directive and is sometimes called the IPRED [Intellectual Property Rights Enforcement Directive] legislation. Under the legislation the Court has, for instance, the authority to order - at the request of a right holder - an internet service provider to give the right holder information about who is noted as the holder of a particular internet subscription (their name and address). To obtain such an order the right holder must show probable cause that the subscription has been used to commit an infringement of an intellectual property right (has, for example, been used to make a film available unlawfully on the internet).

If the Court grants the request, the information about the subscriber's name and address is provided to the right holder and not to the Court. Therefore, the Court does not have access to this information and does not know which persons are the holders of the internet subscriptions in question. However, the subscribers concerned shall receive a notification from their internet service provider. This notification shall be sent to them no earlier than one month and no later than three months after the information was released. The idea is that the right holder can use the information for example to examine the potential infringement and secure their right to potential compensation.

Examination by the Patent and Market Court - the meaning of an order on the right to information

A decision by the Court to grant an application on the right to information means that the judge has come to the conclusion that it is probable that an infringement of intellectual property rights has been committed using the internet subscription concerned.

However, the Court has not examined whether there is full proof that an infringement has occurred or who can, in that case, be held responsible for the infringement.

Nor has the Court taken a position on any question of compensation, neither if any compensation should be paid or what amount is reasonable in that case.