Common Sense – a Finnish citizens’ initiative on the reform of Copyright Law

Common sense to the Copyright Act is the third citizens’ initiative in Finland that reached the 50 000 votes limit (1 % of the population) and probably will go for parliamentary voting. – VILLE LAHTI’s post on the latest Finnish citizens’ initiative on the reform of Copyright Law.


In Finland after the initiative has received 50 000 votes (mostly electronic) it will be sent to a parliamentary committee that will prepare a statement. The main problem and the easiest way to block the initiative is that the committee will not give any statement – and without a statement the initiative will not go to the parliamentary voting.
 
Mass media in Finland has given only minor coverage for this initiative and at the same time some groups have tried to name the initiative as legalising piracy. The lack of traditional media coverage – and wide coverage in the social media – gives this citizens’ initiative a sui generis nature.
 
The initiative includes proposals to amend the position of the consumers, artists and other content producers and incentives to innovate of new services based on network technology. It is proposed that artists would receive the right for dual licensing and withdrawal. Moreover rights to parody and satire would be given to published content. Making private copies for personal use is already allowed in Finland, but it is proposed that the copy of the work could be also transferred for third parties. Works made for education and research use would be also allowed in ‘virtual class rooms’.
 
The most controversial parts of the initiative are questions of copyright infringement and compensations of infringements.
 
The initiative includes the statement that in future copyright infringements by an individual person without any economic gains would be dealt as a copyright misdemeanour and not as a copyright offence. Around this topic three judicial terms: penalty, damages and compensation are often misunderstood. From both – copyright offence and copyright misdemeanour – the Court, or in some cases the prosecutor, can order penalties (notification, fines and/or prison sentences). Damages are awarder for the injured person as described in the Tort Liability Act. In the most of criminal cases concerning copyright, the question is not about damages, but the compensation.
 
The Finnish Copyright Act section 57 governs compensation. In respect of compensation there is no question of penalties and the amount of compensations does not depend upon the real damage caused. Still the aim of the compensation is to put the injured party back to the situation, where he was before the infringement took place. The other side of the compensation is that the offender should not be in the better situation than he was before committing an infringement – if he would have used copyright protected material lawfully. The purpose of compensations is to prevent the occurence of infringements. There is no protection of a good faith or bona fide when it comes to awarding compensations to the injured party.
 
In my opinion the amount of compensations what courts award for injured parties are not seen as fair and just. The question of compensations is proposed to be amended that the court could award compensations only if the offender knew or should have known that the copyright protected material is made to the public without the authorisation of the copyright holder. Furthermore compensations would be limited only to those illegal copies what the offender has made by herself. This would also limit the content provider’s civil liability concerning compensations. This would not remove the tort liability (damages) from content providers, but the tort liability requires proof that there is a damage occurred.
 
When the Common Sense to Copyright Act initiative was drafted there probably wasn’t any awareness what kind of amendments are already coming to other copyright related acts. The new Coercive Measures Act will come into force on 1.1.2014. The new Coercive measures act provides for the police the possibility to seek a court order for collateral confiscation, if there is a danger that the infringer would try to hide his possessions before the court rules about compensations. Today this measure is possible only in cases where there is a risk that fines or damages would be left unpaid. Taken to the extreme, for example copyright infringer’s estates could be but in selling and transferring ban before there is any court ruling of the infringement.
 
Probably the most problematic amendment would be removing from the Finnish Copyright Act sections which provide for copyright holders the possibility to seek from the court an order that the internet access provider need to reveal the identity of alleged copyright infringer. If this section will be removed, it would be complicated – but not impossible – for copyright holders to seek similar orders from courts, but the legal provision for that would be different. This proposed amendment is problematic, because Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society requires member states to provide effective measures and sanctions to prevent copyright infringements.
 
The parliamentary committee and the parliament will probably debate of the initiative in the beginning of 2014. At the same time in Finland we have a larger scale drafting going on to harmonise and collect fragmented information society legislation to one information society act. When following the on-going development from the judicial point of view the only one thing is sure – information society and intellectual property layers need to sweat for bringing their knowledge up to date.

Ville Lahti

Ville Lahti (ville.lahti@utu.fi) is a law student in the University of Turku. See also his bachelor’s thesis: “The Exhaustion of theRight to Control Software Distribution”.

Related material in English:

The Finnish Copyright Act in English is available via http://www.finlex.fi/en/laki/kaannokset/1961/en19610404.pdf

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