Supreme Court Case Law
Future Developments
There are currently no laws in Finland specifically regulating copyright infringements on the Internet. However, general legal rules such as the Copyright Act, the Penal Code and the Damages Act may be applied to such actions.
Section 2 of the Finnish Copyright Act (404/1961, as amended) states that the copyright holder of a protected work has exclusive rights to his work. These rights include the author's right to dispose of his work by producing copies and making them publicly available in an unaltered or altered form, as a translation or modification. The Finnish copyright legislation does not make a clear distinction between the distribution right and the right of communication to the public in distinguishing between digital communication and the distribution of hard copies. However, this distinction has been made in the World Intellectual Property Organization Copyright Treaty, and a proposal for the European Parliament - the Council Directive on the harmonization of certain aspects of copyright and related rights. International developments will probably bring about some amendments to the Finnish Copyright Act. The rules relating to the exclusive rights of the author may not apply to temporary copies made for technical purposes.
An infringement of the copyright holder's right may constitute a copyright offence or a copyright crime, depending on various factors including the following:
- the culpability of the violator;
- the nature and scope of the infringing action; and
- whether the perpetrator sought financial gain.
Copyright holders are entitled to fair compensation for any infringement of their rights. Fair compensation is awarded for the use of the right. If the violation was committed wilfully or through negligence, there is also the possibility of claiming damages.
As a general rule, the content provider of a web site is liable for infringements of copyright. There are no clear legislative rules regarding the liability of an internet service provider (ISP) and existing court practice is not sufficient to establish an unambiguous interpretation. In certain situations it is difficult to determine the actual role of a party providing content and/or services. Under certain special laws some parties (eg, a party having editorial control over material) might be considered more liable for copyright infringements than a party who does not supervise the content of the web site.
In its decision of November 1 1999 the Supreme Court of Finland found an operator of a bulletin board system (BBS) guilty of copyright crime. The operator had established the BBS, ensured its operability and approved the users of the system. Users were required to provide the system operator with copies of copyright-protected software in addition to the copies the operator had made himself. In exchange they were allowed to copy protected software originally copied by other users of the system. The operator was found to have distributed copies of protected software, which was partly due to the large amount of users of the system and the ease of becoming a user. The operator had also reproduced copies of 443 computer programs by storing the programs on digital audio tapes. In its consideration the Supreme Court found that the operator had acted wilfully and in pursuit of financial gain. In an earlier decision on this case the Court of Appeal stated that the mere establishment and maintenance of the BBS would not in itself be enough to constitute a crime as an offender (as opposed to a crime as an accessory). However, the defendant had been so active in the operation that he was found to have committed a copyright crime as an offender.
The Finnish Copyright Act provides civil remedies of fair compensation for the use of the copyrighted work and, in the case of wilful misconduct or negligence, compensation for other damage as well. As regards the fair compensation for use, it is often considered to be the customary price for which the legal right to use the work could have been obtained (royalty presumption). However, in this case the Supreme Court found that the special characteristics of the case (eg, the amateurish operation of the system) should be taken into consideration. Nonetheless, the operation of the BBS had been extensive and the copyright infringement serious. Therefore, the Supreme Court stated that the compensation should be substantial. The fair compensation was determined as half the retail price of the rights to use the software in question. The Supreme Court also considered the issue of damages but found that the actual damage had been unsubstantiated.
Regarding the liability of the ISP, a sufficient number of server users (in the this case at least 101 users) may lead to the ISP being considered to have distributed copies and made the protected works publicly available. In addition, if the other actions of the ISP have been deliberate and have supported the illegal actions of the users, the ISP may be found to have committed a crime as an offender in relation to the illegal copying of protected material.
The legal state of this point still remains unclear. It is expected that the implementation of the EC Directive on Electronic Commerce (2000/31/EC) will clarify the situation, especially with regard to Articles 12 to 15 which deal with the liability of intermediary service providers. However, the directive does not regulate the liability of the service provider. It only defines three cases where the service provider cannot be held liable for illegal content if the prerequisites of the directive are fulfilled.
The Finnish Ministry of Justice has appointed a working group to prepare the implementation of the directive. Their report was published at the beginning of March and the relatedgovernment bill is expected to be submitted to Parliament later in 2001.
For further information on this topic please contact Craig Thompson or Kati Määttä at Roschier Holmberg, Attorneys Ltd by telephone (+358 9 228 551) or by fax (+358 9 664 303) or by e-mail ([email protected] or [email protected]).
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