Intellectual Property

Finnish Parliament Approves Government Bill on Blocking Piracy Websites

The Finnish Parliament has approved the Government bill HE 181/2014 on amending the Copyright Act. The aim of the amendments is to make Finnish law conform to the EU Information Society Directive (2001/29/EC). The bill further clarifies the rules regarding, inter alia, liability for costs. The changes enable right owners to apply for an injunction granted by a court. Such injunction obliges service providers to block piracy sites even if the identities of the administrators of such sites are unknown. Due to the amendments, it will not be necessary to bring a principal claim against the infringer in case he is unknown. The block will nevertheless stay in force for one year.  Before the amendments enter into force, right holders can only apply for an injunction against a pirate site if it is possible to identify the administrator of the site and take legal action against him. This was the case in the famous Pirate Bay rulings, in which the Finnish operators Elisa, DNA and TeliaSonera were obliged to prevent their customers from accessing the torrent site The Pirate Bay. The amendments are set to enter into force during spring 2015. Similar rules already exist in several EU countries.

The CJEU: Broadcasters' Exclusive Right May Be Extended in Regard to Acts of Communication 

The Court of Justice of the European Union (“CJEU”) gave a preliminary ruling in the copyright case ofC More Entertainment AB v. Linus Sandberg (C-279/13). In the ruling, the CJEU clarified that Article 3(2) of the Information Society Directive (2001/29/EC) does not preclude national legislation from extending the exclusive right of broadcasting organizations in regard to acts of communication to the public, provided that such an extension does not undermine the protection of copyright.  Mr. Sandberg had placed links on a website through which Internet users could gain access to ice hockey games broadcasted live on C More Entertainment's website without having to pay the required fee. The CJEU noted that transmissions of live broadcast on internet, such as those at issue, do not constitute making available as provided in Article 3(2) of the Information Society Directive, since such transmissions are not accessed from a place and at a time individually chosen by the viewer. This is significant for broadcasters, as they, unlike authors, only have a making available right and not a full communication to the public right under Article 3(2) of the Directive.  However, the Court noted that Member States may, under the Rental Right and Lending Right Directive (2006/115/EC), provide for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organizations than those required under Article 8(3) of that directive. This option implies that the Member States may grant broadcasting organizations an exclusive right to authorize or prohibit acts of communication to the public of their transmissions on conditions different from those laid down in Article 8(3), and in particular transmissions to which members of the public may obtain access from a place individually chosen by them.  The Court finally held that Article 3(2) of the Information Society Directive must be interpreted as not affecting the aforementioned option for Member States. Consequently, Member States may extend the exclusive right of broadcasting organizations in regard to acts of communication to the public. This offers some ease to sectors relying on live transmissions of content.

Marketing & Consumer

The Finnish Supreme Court Decision on Heat Pump Sale and Consumer Protection   

In its recent decision (KKO 2015:24), the Finnish Supreme Court clarified the provisions of the Consumer Protection Act (1978/38) concerning defects in goods and cancellation of a contract. Person A had bought an air-water heat pump as well as a related energy accumulator from B Ltd for the purpose of heating his household and its water supply. However, the heating system could not heat the water as promised, which caused the more-than-expected use of a separate electric resistor. Consequently, A claimed the cancellation of the contract and claimed damages. The Supreme Court adjusted the amount of damages to be paid but otherwise upheld the decision of the Court of Appeal, which accepted the plaintiff’s both claims.

The Court had to deal with two separate issues. First, it had to determine whether there was a defect in the sales articles pursuant to Chapter 5 Section 12 and 13. As the marketing was conducted via an online web store, the Court considered the information given on the webpage to be highly important. Prior to the purchase, A had submitted to B Ltd. relevant information regarding the building in which the heat pump was to be installed, after which the seller recommended the product at question. The Supreme Court held that the product was defect, as it did not perform as presented. As a main rule, a defect affecting household heating is always considered essential. Thus, there was an essential defect because the heating system did not function as promised. Secondly, the Court assessed the conditions for the cancellation of the contract pursuant to Chapter 5 Section 19. B Ltd. did not want to use its right to rectify the defect, nor was the defect minor, so the cancellation was possible. In addition, the Court determined that neither the exact location of the defective part in the whole nor its share of the total price has any effect in the deliberation. As for damages, the increase of heating expenses caused by the bigger-than-expected use of the energy resistor was a direct damage, not a consequential one as the Court of Appeal had ruled. 

In Brief

The Finnish Market Court Prohibits Universal Music from Making Available Recordings via Internet  

The Finnish Market Court ruled on 18 March 2015 (MAO:191/15) that Universal Music Oy (“Universal Music”) was prohibited to make certain recordings by the band Hurriganes available to the public via internet or via on-demand service. The Market Court held that Universal Music did not under any contract, existing or implied, had the right to make available such recordings. The Court therefore prohibited Universal Music from making the recordings available to the public with reference to sections 56(g) and 60(b) of the Finnish Copyright Act and imposed a conditional fine of EUR 50,000. The Court further ordered Universal Music to compensate the plaintiffs' legal costs. 

Finnish Market Court: PRH Should Have Required the Owner of an International Trademark Registration to Be Represented by an Authorized Representative   

The Finnish Market Court ruled on 11 March 2015 (MAO:175/15) that the Finnish Patent and Registration Office (PRH) acted incorrectly when it did not take any measures in order to require the owner of an international trademark registration to appoint an authorized representative to represent it. PRH had validated the trademark despite the fact that the owner was not domiciled in Finland and had not appointed a representative resident in the European Economic Area, as required by the Finnish Trademark Act. The Market Court stated that the Trademark Act contains no special provisions that would relieve the owners of international registrations from these obligations. 

New Medical Products Act in Sweden   

The Swedish government has proposed a new Government bill (Prop. 2014/15:91) on the Medical Products Act which is suggested to enter into force on 1 January 2016. The purpose of the new act is primarily to simplify the wording and to achieve a better overview of the Medical Products Act. Only some minor clarifications and material changes are proposed. The current Act has become increasingly unattractive because of, inter alia, extensive additions and changes.