FAQ: copyright and streaming

What does copyright entail, is it a copyright infringement if I watch streamed films instead of downloading it from the internet and how do I know what is legal or illegal online? You can find the answers here.

EUIPO (European Union Intellectual Property Office) is the EU intellectual property authority. It has asked experts from 28 EU countries to answer some of the most frequently asked questions about copyright.

FAQs on copyright, EUIPO (external website)

Here you can find all the questions and answers in PRV's reworked format:

1. What does copyright and related rights mean and cover, and is it the same all over the world?

Answer: Copyright protects various literary and artistic works, for example creations by authors, photographers, illustrators and artists. Being a "work" means that it has been created independently and can therefore be considered original. Quality is not an issue here. Works with low quality can also be protected by copyright. However, creations that are too simple and banal are not necessarily protected by copyright at all, even though the requirements for individual effort and originality tend to be set quite low in various legal cases.

Copyright is composed of two parts: economic rights and moral rights.

Economic rights concern the author's rights to take decisions on making the work available and reproducing (copying) it. The author has exclusive right and thus complete freedom to make independent decisions about the economic part of copyright. The author can choose to transfer all or parts of the economic copyright to someone else for a limited or an unlimited period of time.

Moral rights entail the right of the author to be named as author of the work when it is used in various ways. There are no uniform rules for providing the name of the author. It instead depends on the type of work in question and how names are usually provided for such a work. Moral rights also entail that a work cannot be altered, pruned, manipulated or used in a way that is prejudicial to the author. Normal cropping or alteration in the production process is therefore permitted. Moral rights are mandatory legislation and this means that they cannot ever be waived, but instead remain with the author. However, the author can occasionally choose to waive their moral rights.

Copyright also protects certain types of performance produced by, for example, artists, music and film producers and TV companies. This is known as related rights. Photographers are also covered by related rights for simple photographs that do not possess the required level of originality, such as passport photographs, photographs used by the press and amateur photographs. Related rights are largely the same as the economic rights for works. Photographers and performing artists also have moral rights to their creations.

Copyrighted works are protected separately in each country, however there are many international conventions and treaties that govern copyright internationally. Accordingly, economic and moral rights can be said to be internationally aligned to a large extent. There are differences between copyright legislation in different countries, primarily related to the scope of limitations and exceptions. Limitations are various means of use that are permitted by law without the consent of the rights holder. Certain limitations that are permitted in Sweden may not be permitted in other countries and vice versa.

2. Who owns copyright and how does copyright benefit rights holders, consumers, society and economy?

Answer: In Swedish copyright law it is always the physical person (the actual creator) who is given copyright. Copyright therefore rests with the person who has performed the required intellectual effort necessary for the protection. This is true for both employed authors and freelance creators. However, both physical and legal persons can be the original owners of certain related rights.

It is not uncommon practice for economic rights to be transferred fully or partially to another party, for example an employer or client. Authors may also permit another party to manage their exclusive rights, for example an image bank or a collective copyright organisation.

Copyright protection provides economic incentives for creators to create works, regardless of whether these are generally useful or commercially relevant. It may also involve works of art or architecture or other creations of cultural and societal interest. Without copyright protection, creators would be unlikely to invest the same amount of time and effort in creating new works. If that were the case, many business models or ways of accessing copyright-protected works would, most likely, not be developed further. Copyright therefore serves a very important function for the economy and society as a whole. Like any other law, the Act on Copyright in Literary and Artistic Work also serves to define what is permitted and under what circumstances. Copyright protection is not absolute, either in time or in scope, and this serves to facilitate, inter alia, access to culture.

3. Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?

Answer: Copyright or related rights, subsists in a work automatically from the moment the photograph is created or taken. Therefore, there is no need to register the creation. The copyright symbol © need not be used in Sweden. The rights are granted irrespective of how the creation has been expressed. It does not matter whether the creation has been printed on paper or exists only digitally.

4. What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn't aware that I infringed something protected by copyright?

Answer: Making copies of a work or making it available to the public in various ways without permission, or without this being allowed according to a provision or limitation, constitutes an infringement. The same is true if the name of the author is not stated or if the work is changed in a manner that is prejudicial to the author's literary or artistic reputation or if it is made available to the public in such a form as to be prejudicial to the author's literary or artistic reputation.

An infringement of the author's copyright can lead to various consequences or sanctions such as injunctions, economic compensation, damages, seizure and imprisonment. The type and extent of the various sanctions depend on what has been used and in what way, and on whether it has been done intentionally, negligently, or with or without the knowledge that what was used was protected by copyright.

Copyright infringement can be punished only where it was committed intentionally or with gross negligence. If the infringer did not know, or have any reason to suspect, that a work had been unlawfully reproduced, he or she cannot be punished for it. Liability to pay damages occurs only when an infringement is committed intentionally or with negligence. However, the author/rights holder always has a right to reasonable compensation for the unlawful use of the work. In practice, this means that use that has been made without the consent of the author must always be paid for. An exception is if the use consists of making a copy for private use from material provided unlawfully (see question 7). In this situation, compensation has to be paid only if the infringement was carried out intentionally or with gross negligence.

5. Under which conditions can I use a work protected by copyright without asking for permission? I was told that quotes are always allowed.

Answer: The main rule is that the author alone may exploit their work in various ways, i.e. the economic rights. This means that anyone who wants to use the work must ask for the author's permission. In view of religious, cultural and other societal needs, certain limitations have been imposed on the author's exclusive rights. The Copyright Act provides for a number of limitations that make it possible for others to use works without authorisation from the author. Examples of such limitations are making limited reproductions for private use and quoting the works of others, depict public art or buildings and playing music in public, if the music itself is not the principal part.

It is possible to quote another person's written work in compliance with proper usage if the source is indicated and if it is not prejudicial to the author's moral rights. This means that a quotation may be used for the purposes of criticism or for elucidating one's own or another person's work. However, a quotation may not be any longer than is necessary to achieve its purpose. In practice, this means that quotations cannot simply be used to make a work more readable.

6. Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?

Answer: Using another person's music in a homemade video you want to upload online normally requires the consent of the rights holder. However, it is permitted for private use. Uploading a video to a platform that is publicly available on the internet requires permission according to the law. It is irrelevant whether you are the author of the video itself. If the video contains works belonging to another person, the latter's consent is required before the work can be made publicly available on the internet. This applies even if you upload the video for your friends or followers on one of your own social media accounts. However, if the piece of music is no longer copyright protected, i.e. if more than 70 years has passed since the death of the composer, no permission is required.

7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?

Answer: A person may make one or a few copies, for private use, of a work that has been made available. How many copies are covered by 'a few' has to be decided on a case-by-case basis. The copies reproduced may not be used for other purposes. Both analogue and digital works may be reproduced privately. However, a work downloaded from the internet must have been uploaded there lawfully. Otherwise, the limitation on copying for private use will not be applicable. Irrespective of you having acted in good faith. In other words, private use is no defence if the copy of the work reproduced for such purposes was not based on an original reproduced or made available with the rights holder's consent.

A copy reproduced for private use, based on a lawful original, may be given to a family member or close friend.

8. Am I allowed to download a photo, music or film from the internet? Does it matter which technology is used and whether I download only parts of the work?

Answer: When a work is downloaded from the internet, a copy of the work is made. This is also the case when smaller sections of a work are downloaded.

A work may be downloaded from the internet only if it was legally uploaded to the internet. In that case, it is a matter of legal copying of the work for private purposes.

9. I could not copy a DVD to my computer because of something called 'Technical Protection Measures'. What is that and am I allowed to get around them in order to make private copies?

Answer: The Copyright Act protects the use of Technical Protection Measures (TPMs). They are measures with technical barriers that protect access to copyright works. In Sweden, TPMs specifically restrict the reproduction or making available of a work to the public, that is to say the economic rights that are expressly granted by the Copyright Act. However, not every technical measure is a TPM: for instance, the regional protection of DVDs is not.

The fact that TPMs are protected means that it is illegal to circumvent copy-protection technology in order to, for example, upload a work to the internet or otherwise make it available to the public. Nor is it permissible to circumvent the copy-protection technology on a CD in order to 'rip' it to mp3 format for private use. In these cases, it is a matter of copying the original work, which requires the consent of the author. It is, however, possible to circumvent TPMs if they prevent access to a legally acquired work. In practice, this means that it is lawful to circumvent technology that prevents you from listening to or watching a film on the computer or with alternative operating systems. In such cases, no new copy of the work is made.

10. What are copyright levies?

Answer: Private copying levies are fees that make it possible for the public to copy and record music, films and television programmes for private use while simultaneously compensating the author whose works are reproduced. A limitation of the EU legislation makes it lawful to reproduce copyright-protected creations for private purposes if authors are remunerated. Swedish law ensures that such remuneration is paid by the business owner that manufactures or imports products that can be used for private copying, such as CDs/DVDs, MP3 players, external hard disk drives, USB sticks and digital boxes with built-in hard disk drives for TV.

11. Am I infringing copyright if I watch a movie or TV series by streaming it from the internet?

Answer: The question of whether or not streaming films and TV series from illegal streaming services is illegal is hotly debated. The original perception was that watching and listening to works covered by copyright online is permitted, even if the streaming service itself is illegal Since, in normal cases, no copy of the file is made when streaming, or only temporary copies are produced, the consumer is not committing a copyright infringement. Temporary copies that occur for technical reasons are exempted from the reproduction right normally held by the author.

This perception was partly changed in connection with a European court case (Stichting Brein C 527/15) in spring 2017. In that case, the European Court of Justice ruled that the limitation pertaining to temporary copies no longer applied to the temporary copies that were produced when streaming from an illegal streaming service through a media player, such as that at issue in this case. The viewer would then also be committing copyright infringement by streaming via the media player. Whether this reasoning is applicable to all kinds of streaming of content from an unlawful source is not yet clarified. No such case has yet been tried by Swedish courts. What is clear, however, is that sharing files while simultaneously streaming material does constitute copyright infringement if the work has been uploaded unlawfully. The same is true if copies of the unlawful files are made by the viewer, that are not seen as temporary copies.

12. Copyright-protected works are included into my posts automatically by social media platforms. Am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog? Does it matter if it is a reference link or if I embed the link?

Answer: Uploading another person's copyright-protected work to Facebook, for example, requires the consent of the rights holder. In such a case, the user may be both reproducing the work and, in some instances, making it available to the public. Both these uses are encompassed by the author's sole economic rights. It is irrelevant whether the work has been uploaded "automatically". You are still responsible for obtaining the necessary rights to use the work.

Linking to copyright-protected works and embedding them (e.g. with the help of tags such as provided on websites like YouTube) is permitted on condition that the link does not as such circumvent a password or any other measure that has been implemented by the host website operator. In other words, the content must usually be freely accessible for linking to be acceptable. It is still not clear if linking to content that has been uploaded unlawfully is also permitted without the author's consent. However, if such linking with pursuit of financial gain or for commercial purposes, permission is required. It then does not matter whether the person linking did not understand that the material was published unlawfully.

13. When I create a work and upload it on social media, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?

Answer: Economic rights can be transferred wholly or partially by the author to another. If there is a condition for your use of the social media service that says that the company has the copyright for your films or photos, that condition likely applies. However, a clear agreement between you and the company is needed for the copyright to be considered to be wholly transferred. The moral right cannot be taken from the author by another. It is also the author themselves who decide that the moral rights shall not apply, but this may only occur on individual occasions.

14. My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?

Answer: An avatar can be protected by copyright in the same way as an artistic or photographic work. If you adapt another's work, consent may be required from the author to both to perform the adaptation and to use it in various manners. However, this does not apply if it is for your private use.

The subject-matter can also sometimes be protected in the same way as other intellectual property, particularly a trademark or design. However, if the avatar is not used for commercial purposes or what is called "business activities", the laws are not applicable. That is the main difference between copyright and the other intellectual property rights. Copyright concerns both commercial and non-commercial use of the work.

15. How do I know whether a work is offered legally or illegally online?

Answer: In Swedish copyright law there is no concept of good faith, i.e. that you are not aware and have no reason to believe that it is a copyright protected work you are using without consent. The main rule is that those who want to use someone else's work shall ask for the author's permission, unless there are limitations in place for the use, e.g. copying for private use or quoting.

Only those who have infringed copyright intentionally or with gross negligence can be punished. If an infringer did not know, or have any reason to suspect, that a work had been copied unlawfully, he or she cannot be sentenced or found liable to pay damages. However, the rights holder always has a right to reasonable remuneration for unlawful use of his or her work. This means that use that has been made without the consent of the rights holder must always be paid for. Exceptions apply for making a copy for private use. Compensation must be paid only if the infringement is committed intentionally or with gross negligence.
The questions have been produced by EUIPO (European Union Intellectual Property Office), which is the EU's intellectual property authority. It has asked experts from 28 EU countries to answer some of the most frequently asked questions about copyright.

FAQs on copyright, EUIPO (external website)

Streamalagligt.se: stream leagally (external website)