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Decision of the Supreme Court 21 January 2019 – Case No. B 1540-18

  1. 1.

    If the rightholder is entitled to reasonable compensation for use and partial compensation for his/her further damage, it must be clarified that the calculation of damage does not include what is covered by compensation for use. The calculation of the latter is independent of suffered losses.

  2. 2.

    Compensation is determined as if an agreement on compensation for an assignment of the right to use the work in the manner that actually occurred had been reached in advance. It is therefore a hypothetical licence fee.

    1. a.

      The starting point thus is an imaginary agreement between a rightholder in the related industry and someone who wanted to acquire the right to use a type of work in question in the way, to the extent and for the purpose that occurred due to the infringement.

    2. b.

      However, the method supporting the claim for compensation may be associated with difficulties, for example, when such a fictitious licence is based on the assumption that the parties in a contractual situation would have agreed on a licence fee.

  3. 3.

    If there are no prerequisites for determining compensation, it remains for the court to determine a reasonable compensation for the unlawful use, taking into account the evidence that the parties have submitted.

    1. a.

      The rightholder is required to prove what a common price is and, if a common price is lacking, the circumstances that are decisive for the court’s assessment of what would have been a reasonable compensation.

    2. b.

      However, the question of whether compensation is reasonable or not constitutes a legal assessment.

  4. 4.

    The evidence requirement may vary, depending on the circumstances, due to the fact that the information that forms the basis of the claim must be substantiated with regard to what is alleged to be probable. Thus, the degree of evidentiary difficulty may need to be considered. There may sometimes be reasons also to consider the relief clause in Chapter 35, Sec. 5, first sentence, of the Code of Judicial Procedure. According to that rule, if full evidence cannot be obtained at all or only with difficulty, the court may estimate a reasonable amount of damage.

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Translated by Branka Marusic.

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MB and AI v. Aktiebolaget Svensk Filmindustri Copyright Act (1960:729), Sec. 54, first paragraph; Code of Judicial Procedure, Chap. 35, Sec. 5, first sentence. “Dreamfilm”. IIC 50, 898–904 (2019).

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  • Hypothetical/fictional licencing fees
  • Reasonable compensation
  • Basis for calculation
  • Burden of proof
  • Compensation for damages vs compensation for use
  • Evidence