DSM Contract Rules in a Cross-Border Context: A Swedish Perspective

Abstract Authors and performers tend to be in the weaker contractual position when they grant a licence or transfer their rights for the purposes of exploitation in return for remuneration. Directive 2019/790 on the Digital Single Market Directive (DSM) therefore aims to strengthen the contractual position of authors and performers so they are “able to fully benefit from the rights harmonised under Union law”. In light of this aim, the EU legislator made certain rules mandatory in purely intra-EU situations. Some Member States have made these rules mandatory even in situations having a connection to a third country. Mandatory rules can only be effectively enforced if a dispute is brought before a court in a Member State obligated to apply them. A court in a third country is not obligated to apply EU or national Member State mandatory rules and may be restricted from doing so by the third country’s choice of law rules if the agreement specifies a third country law as governing law. This article examines the application of the DSM contract rules in a cross-border context, in particular, whether a Swedish court must refuse to give effect to choice of court agreements, in contracts between a Swedish author or performer and their contractual partner, that grant exclusive jurisdiction to third country courts and are coupled with the choice of third country law.