Streaming – en rättslig gråzon? - En utredning av slutanvändarens ansvar vid streaming och bevisanskaffningsmedlet informationsföreläggande

Sammanfattning: This essay investigates copyright infringement caused by streaming. The research is conducted with a legal dogmatic method and a European legal method. The purpose of the first part of this essay is to examine in which situations temporary reproduction of a copyright-protected work by an end-user in the course of streaming give rise to copyright infringement. The second part aims to examine the rightsholders’ possibilities to intervene against infringement caused by streaming using an order to provide information (information injunction). Temporary copies are made during streaming as a result of the technical process. Both temporary and permanent reproduction of a work is reserved to the holders of copyright and related rights. However, the act of reproduction does not constitute an infringement if the act falls within the exception regarding temporary acts of reproduction. The exception contains five cumulative conditions and must be interpreted in light of the three-step test. So far, the European Court of Justice has only ruled on one case concerning end-users’ action during streaming. The Court held that the act did not satisfy the condition “lawful use” and the conditions set out in the three-step test. The ruling was motivated by the fact that the end-user deliberately and in full knowledge accessed unauthorized published works. It is held in the essay that the condition “lawful use” should not be interpreted as meaning that the source from which the reproduction is made must have become available lawfully. However, an interpretation of “lawful use” in the light of three-step test could entail that the exception is not applicable in situations in which the source from which reproduction is made is unlawful. Streaming could therefore give rise to copyright infringement, nonetheless, infringement assessment must be conducted based on the facts of each case. The general requirements for granting information injunction do not constitute an obstacle for the injunction’s use in the event of suspected infringement due to streaming. However, the use of the information injunction is problematized as a result of the uncertain legal situation regarding when streaming constitutes an infringement. So far, no application for an injunction has only concerned infringement through streaming. On all accounts, the injunctions field concerned acts of infringement through reproduction and communication to the public. It is uncertain how the proportionality assessment would be made in cases where the suspected infringement consists only of a temporary reproduction of the work. In case law, however, the rightsholder’s right to effective remedies has been given great importance, often at the expense of the privacy interests of the individual. The decisive factor in the proportionality test seems to be whether the applicant demonstrates a likelihood that someone committed a copyright infringement of a certain extent. In the case of communication to the public, it is clear that the act constitutes an infringement to a certain extent. As a result of technological development, however, infringement through streaming can also result in great damage to rightsholders. It is therefore likely that the right to respect for one’s private and family life also in these cases must be restricted in order to guarantee the right to intellectual property. In Swedish law, the information injunction is an independent civil remedy. There is no requirement that the application is brought within a civil proceeding. Whether the information obtained through an information injunction is intended to be used in letters of demand for the purpose of reaching an out-of-court settlement is not something that has been given any significant recognition in the court’s assessment of proportionality. The essay also states that the purpose for which the information injunction is requested is not something that should be considered in the proportionality assessment.