Implementation of Chapter 3 of the DSM Directive in Sweden

By Thorbjörn Öström[*]Attorney at law at Öström Advokat AB.

In order to fully comprehend the Swedish implementation of chapter 3 of the DSM-directive[1]Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC., one must consider a number of fundamental factors that characterised the implementation process. First of all – the directive gave the member states some wiggle room, which means that the Swedish legislator had to make a number of choices that are quite important for the Swedish implementation. The two main choices of the Swedish legislator that affected how the system turned out is firstly, to implement the provisions as general, contractual rules, and secondly, that these were made mandatory, also regarding the right to appropriate and proportionate remuneration.[2]Directive 2019/790, article 23.

The choice to make general rules, and at the same time let go of some of the old, existing and more specific rules for – for instance – publishing agreements[3]See §§ 33–35 (now annulled), lag (1960:729) om upphovsrätt till litterära och konstnärliga verk (the Swedish Copyright Act (SCA))., of course makes it very hard to find a one size fits all solution for all content markets. In today’s knowledge society, copyright licences exist in many sectors, even outside the copyright-intensive industries traditionally considered to constitute the creative sector. Consequently, the Swedish legislator has emphasised that great consideration must be given to the industry practice of the market in question[4]See, for example, prop. 2021/22:278, p. 157, 198 and 232. and has also put a great deal of effort into trying to clarify in the preparatory work how the rules are intended to be applied.

At the same time, the objective of the new legislation is to strengthen the author’s position as a contracting party.[5]Op. cit. p. 175. Hence, some form of development from current industry practice must be embedded in the rules. The remaining questions are – of course – what kind of development and for which sectors?