Key Concepts Clarified
Exhausting Distribution Rights
Fair Compensation
Protection of Technological Measures and Rights-Management Information
Further Amendments
On October 10 2002 a government bill implementing the EU Copyright Directive (2001/29/EC) was submitted to Parliament. A government bill proposing the ratification of the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty was also submitted.
If adopted by Parliament, the amendments to the Copyright Act will take effect on December 21 2002.
Although the key concepts of existing Finnish copyright law correspond to the directive, the proposal suggests amendments to clarify them.
In the proposal, the exclusive right to make a work available to the public has been divided into four categories:
- communication to the public by wire or wireless means;
- public performance of the work;
- distribution of copies of the work; and
- display of the work by direct means (ie, without technical devices).
This restructuring creates a distinction between direct and indirect means of making the work available. Further, the proposed concept of the right to communicate a work to the public covers both 'on-demand' and 'peer-to-peer' communication, where a user enables third parties to use information stored on its computer through a network.
The proposal suggests that the new structure should apply to agreements that were concluded after the new legislation's entry into force. Therefore, it will not have an effect on the interpretation of existing agreements or the scope of rights acquired before that date.
Further, the reproduction right is harmonized with the directive, affirming that it covers all forms and means of reproduction, whether in whole or in part, direct or indirect, or temporary or permanent. This express provision clarifies the existing legal situation. Pursuant to the directive's mandatory exemption, temporary copies for technical purposes, such as copies generated as a result of browsing the Internet, are exempted from the exclusive right of the copyright owner. Curiously, this exemption has also been applied to computer software, although the directive expressly excludes software from the scope of this exemption.
Exhausting Distribution Rights
According to the proposal, the principle of international exhaustion of distribution rights presently applied in Finland will be replaced by the EU-wide exhaustion standard set out in the Copyright Directive. EU-wide exhaustion will be extended to cover all works, including software.
Under the directive's obligations, the exclusive rights of copyright holders may be limited as long as their right to receive fair compensation for the use of their works is secured. Thus, the proposal imposes levies on all equipment on which the works may be recorded and which are, to a substantial degree, to be used for the reproduction of works for private use. Based on the proposed provision, the levy would replace the present so-called existing 'blank tape' levy system and cover all types of works. Under the present provision, levies are imposed only on audiovisual recording media suitable for transmission via television or radio, or for private copying.
According to the proposal, the equipment to be levied will be determined annually by decree of the Council of State. Equipment intended for professional use is excluded. The proposal provides that the levy amount will be based on recording capacity, and the use of technical protection measures will be taken into account.
Protection of Technological Measures and Rights-Management Information
The proposal also introduces new provisions concerning the protection of technological measures and rights-management information. According to the proposal, circumvention of any technological measure designed to protect copyrighted materials is prohibited. It is also prohibited to manufacture, import, distribute or possess for commercial purposes devices:
- that are promoted, advertised or marketed for the purpose of circumvention;
- that have only a limited commercial significance for other use; or
- that are primarily designed, produced, adapted or utilized for the purpose of enabling or facilitating the circumvention.
Further, the proposal prohibits the distribution of works and other protected materials which have had their technical protection circumvented.
The proposed provisions permit the circumvention of technical measures used by a private person to gain access to or reproduce a lawfully acquired copy of a work for private use. In addition, circumvention of technical measures is permitted in connection with research into encryption techniques.
The proposal also contains conforming amendments concerning the legal protection of rights-management information required by the directive. Protection is provided both against tampering with rights-management information, and against distributing or communicating to the public works whose rights-management information has been tampered with or removed.
It is proposed that violations of the technological measures and rights-management information prohibitions be covered by the Copyright Act and the Penal Code.
The proposal also introduces certain improvements to the neighbouring rights, including the suggestion that performing artist' right to compensation is extended to the public performance of audiovisual musical works, such as music videos.
The proposal also suggests amendments independently of the directive. It suggests that the scope of the existing contractual licence system be extended and modified. In addition, the import of counterfeit goods for private use is to be prohibited. However, importing a small number of copies for private use is not considered to be a copyright infringement.
Amendments will also be made to the exclusive rights exceptions, such as reproduction in the archives, libraries and museums, as well as the reproduction of works for the disabled. The exception regarding the free right to perform works in connection with church services will be repealed.
For further information on this topic please contact Rainer Hilli or Jenni Kyntölä at Roschier Holmberg, Attorneys Ltd by telephone (+358 20 506 6000) or by fax (+358 20 506 6100) or by email ([email protected] or [email protected]).