Impact of the IP Enforcement Directive: Ephone, TeliaSonera and Com Hem

Since the EU IP Enforcement Directive (2004/48/EC) was implemented into Swedish law in 2009, three cases have dealt with the most central provision: the potential right for IP rights holders to obtain information regarding the origin and distribution networks of infringing goods and services. In the three pending cases, each of which covers one of the largest rights holder groups – music, films and books – the plaintiffs requested information regarding the internet protocol (IP) address of certain individuals accused of committing copyright infringements.

So far, the common denominator of the three cases is the potential conflict between the rule in the Copyright Act allowing disclosure (as discussed above) and the EU Privacy and Electronic Communications Directive.

The first of these cases (ÖÄ 6091-09) has reached the Supreme Court. Five publishers brought an action against Perfect Communication Sweden, a company providing internet access under the name EPhone. The publishers argued that infringements of copyright-protected audio books had occurred through a file transfer protocol server and requested that the district court order the provision of information. The district court granted the publishers' claim and ordered EPhone to disclose the requested information against the threat of a fine of Skr750,000.

EPhone appealed and pleaded, among other things, that the new provision was contrary to the Privacy and Electronic Communications Directive, and therefore was contrary to EU law, since Article 4 of the directive states that information such as an individual's IP address should be delivered to national authorities only.

The court of appeal did not find that the Swedish law was contrary to the directive. However, it stated that the plaintiffs had failed to show probable cause for infringement and the request was rejected.

After the publishers appealed to the Supreme Court, EPhone maintained its position regarding the conflict between the directive and the Copyright Act provision, and asked that the Supreme Court refer the matter to the European Court of Justice (ECJ) for references in a preliminary ruling.

The Supreme Court recently assented to EPhone’s request by formulating the following questions for the ECJ:

• Is Swedish law regarding an order to provide information contrary to the Privacy and Electronic Communications Directive?
• Is the answer affected by the fact that Sweden has not yet implemented the directive, although the deadline for implementation has passed?

The outcome of this case is likely to affect the other two pending cases.

In the second case (ÖÄ 10152-09), a number of film companies claimed a similar order against internet service provider TeliaSonera. The film companies argued that a large amount of copyright-protected material was distributed through the website Swetorrents. The Södertörn District Court granted the claim. The court of appeal later affirmed the judgment, which was then appealed to the Supreme Court, where it is now pending.

The third case concerns the illegal uploading and downloading of music files. Several music companies, represented by the International Federation of the Phonographic Industry, have requested an order to provide information to be issued to Com Hem AB, a company offering television, broadband and telephone distribution services. The district court ruled in favour of the music companies, but Com Hem has appealed to and requested that the litigation be stayed pending the ECJ’s decision in EPhone.

Moa Molin, summer trainee, contributed to the preparation of this article.