Swedish court: higher compensation for copyright violation due to filesharing

Following a recent Dutch court ruling on compensation for copyright infringement, analyzed this week on Future of Copyright, I’d like to draw your attention to a case on the same topic in Sweden.

In The Netherlands, the district court of Dordecht recently dealt with a matter of copyright infringement between BVFP and Cozzmoss, which was about a weblog that re-posted news articles from major Dutch newspapers. The newspapers claimed that their copyrights were violated because they received no compensation for taking over their work and that no permission has been given.

Cozzmoss, the plaintiff on behalf of the newspapers, also claimed that in addition to compensation for lost licensing revenues, the newspapers were also entitled to compensation for damages related to the illegal distribution of their work. However, in Dutch copyright law there is no basis for granting claims for additional damages that arise as a consequence of copyright infringements. Only a compensation for missed income related to the creation of the work, such as lost royalties or licensing fees can be awarded. Furthermore, it has been consistently held by courts that it would be difficult to determine what such damage would amount to.

The Dordrecht Court confirmed all this. However, judges did acknowledge that, at the end of the day, the loss of the newspapers will be more than just missing a reasonable compensation for their work. By publishing their articles on another website they lose control over their product and miss out on future exploitation possibilities. This damage is difficult to determine, but the court estimated the additional damage would be 25% of the economic value of the text. Therefore, Cozzmoss ultimately received a 125% compensation for copyright infringement. If this verdict is upheld, this will open the door for additional compensation for copyright infringement.

Abroad, this is already the case. Judges in the United States, in particular, accept all kinds of claims for collateral and future damages. Many European lawyers would call the American compensations awarded for copyright infringement as being excessive. In Sweden, earlier this year, a court found that $7,- per music file is a reasonable compensation for the distribution of pirated digital music. The Swedish public prosecutor, however, appealed this decision and protested against the calculation of the compensation for copyright infringement. The prosecutor demanded an additional compensation for consequential loss and even imprisonment for the perpetrator.

The appeal proceeding was held this week and the surprising result is that, in Sweden, the reasonable fee for illegaly copied work may be supplemented by compensation for consequential damages, such as the fact that the files are spreading online, beyond anyone’s control.

The original fine of 2000 Swedish Kroner for 44 illegally distributed works was increased to 13000 kroner, about €32,50 or $47 per song. It is fascinating to see that this claim of additional loss was accepted while the copyright owners did not present concrete evidence of such damage. Also, the court said they took into account that only a small number of files were copied and that the defendant had no commercial interests.

Arguably, European courts keep away from American style compensation, but there is clearly a trend in Europe, where additional compensation is deemed reasonable for copyright infringement on the internet. 

Sources: Dagensjuridik (Swedish), Techdirt, TorrentFreak