Transposing the DSM Directive: the draft Swedish implementation of Article 17

While some countries have already adopted the DSM Directive into their own laws (last week it was the turn of Spain and Italy: see here and here), many are still working full force on implementing it, despite that the deadline has already passed.

As to Sweden, a government inquiry was initiated last year and completed earlier this autumn. Only last month did the relevant Committee complete the inquiry; a memorandum has now been sent for consultation to relevant governmental agencies, organizations, and stakeholders. Once the memorandum is scrutinized it will be sent back to the Government and the Council on Legislation.

Let’s look at the proposed Chapter 6(b) in the memorandum [unofficial translation by myself] and find out how it compares to its EU counterpart: Article 17 of the DSM Directive.

The first interesting feature of the Swedish proposal is that it does not use the exact same wording of the Directive insofar as safe harbour availability is concerned: the bill seems to provide for the inapplicability of Article 14 of the Ecommerce Directive to the activities within the scope of Art 17 of the DSM Directive … and beyond. It provides that (my own translation) “The provisions of Section 18 of the Swedish Law on e-commerce and other information society services (2002:562) (available only in Swedish) [which implements Article 14 of the Ecommerce Directive] shall not be applied when a service provider transfers works to the public in accordance with the first paragraph”. The Swedish draft wording seems to suggest that the hosting safe harbour shall not apply to online content-sharing service providers (OCSSPs) altogether.

Another notable feature can be found under Section 52(I). The proposal sets out that, in order for an OCSSP to be exempted from liability in the event that no authorization is obtained (Article 17(4)), it is required that it has done what can reasonably be required to inter alia “[…] ensure that content that infringes the copyright of works for which the rightholders have provided the service provider with relevant and necessary information is not made available on the service”. The draft text specifies that the latter must be exercised in accordance with “high industry standards of professional diligence”. An argument could be made that this obligation is different in scope from that under the DSM Directive. However, a reason may also be that the legislator wanted to grant the Court of Justice of the European Union (CJEU) a larger scope of interpretation and therefore also increase copyright harmonization in the future. In any case, the reference to “high industry standards of professional diligence” is made in the preparatory works that are part of the memorandum which Swedish courts frequently seek guidance in.

Thirdly, the proposal sets out in Section 52(o) that, “a service provider shall have effective procedures to ensure that the measures taken by the provider to prevent access to content pursuant to section 52 (l) do not prevent lawful transfers to the public to any appreciable extent”. Comparing Section 52(o) to Article 17 of the DSM Directive, the Directive appears more peremptory in tone and possibly content. The Swedish text appears to suggest that there is no absolute ban on preventing lawful uses. In contrast, the DSM Directive sets out in Recital 71 that “the cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation”.

Fourthly, Section 52 (q) establishes a complain mechanism and, in this regard, sets out that an OCSSP shall have routines for being able to handle complaints from users when access to content that they have uploaded has been prevented. The rightsholder shall be given an opportunity to comment on the complaint and if the rightsholder’s request is not duly substantiated, the content shall be restored. What is made clear from this provision is that Sweden appears to be opting for an ex-ante blocking of content (i.e., the content shall not be accessible pending a complaint). In this sense, critics have already voiced that this may be unduly restrictive of freedom of expression and information.

Finally, Section 52(u) provides that a contractual term that restricts a user’s right is invalid. This final section is not specified in the Directive. In addition, by using ‘right’, the Swedish draft indicates that the mandatory exceptions under Article 17(7) of the Directive are to be qualified as ‘rights’ of users.

In conclusion, it will be interesting to see what feedback the memorandum will receive and whether any substantial changes will shape its final outcome. Nonetheless, there are still uncertainties and how Sweden will address these remains to be seen in the (hopefully) near future.