Latest developments in copyright
The government’s assignment concerns five core areas and is set to culminate in a new government bill during winter/spring 2014.
The Ministry has already proposed a draft bill regarding one of these areas: enforcement measures against unauthorised use of copyrighted material online. The new draft bill introduces changes to the current procedure for website blocking orders and also a new alternative tool to disrupt the operation of illegal websites: bandwidth ‘throttling’. The new ‘throttling order’ would enable courts to order Internet service providers to slow down traffic to and from pirate websites.
One of the changes proposed is that the court would have the authority to issue a blocking order independent of a case against the primary infringer when, despite reasonable efforts, the infringer cannot be identified or actions cannot be brought against the infringer in Finland. Interim blocking orders are already possible in the context of legal actions against the infringer but, since operators of pirate services tend to hide their identities and/or are operating from jurisdictions from where they cannot be brought to appear in court, the measure in its current form is ineffective.
"The Ministry seems prepared to support the extension of the Extended Collective Licensing scheme."
The new procedural rules would also apply to orders regarding bandwidth throttling. According to the draft bill, bandwidth throttling and website blocking would be alternative measures and when deciding on the merits of the rights holders’ applications, the court should decide on the most effective measure depending on the case.
However, during preparatory consultations some doubts were expressed about the effectiveness and cost of throttling. For now, blocking seems the most cost-effective way to ensure that illegal services established outside the country are not able to operate freely in the Finnish markets.
Private copying levies—reform postponed
A reform aimed to ensure fair remuneration for the creative industries for private copying, while also taking into account the technological progress in copying equipment and services, has been in process since 2011. It has been recognised that the new system should be predictable, administratively as light as possible and should boost services and job opportunities in Finland.
Current levies cover media typically used for private copying such as CDs, DVDs and external hard drives, but many devices widely used for private copying, such as mobile phones, are not subject to levies. The government has announced that the current levy system will stay in force during 2014 and decisions on the course of the reform will be made during the year.
Clearance of rights for network PVRs
In 2012, copyright issues related to online storage services for TV programmes, or network private video recording services (network PVRs) were dealt with by the Copyright Commission, a consultative body appointed by the State Council. The services’ business model was found to be problematic due to the fact that the operators of these services had refused to seek licences from the rights holders. The service providers claim that the storage of TV programmes by the services falls under the private copying exception in the Finnish Copyright Act.
Stakeholders have since sought to agree on a streamlined licensing process and the Ministry has announced that it is prepared to support a possible agreed solution with legislation. The Ministry seems prepared to support the extension of the Extended Collective Licensing scheme to the licensing of reproduction and making available rights in TV programmes for network PVRs.
Fair remuneration for transfer of copyright
The government programme sets out that the Copyright Act should provide clearer rules on contractual terms and fair remuneration for transfers of rights. The Ministry has outlined several alternative ways to address the issues, varying from a general clause on right holders’ entitlement to fair remuneration for the use of their rights to detailed regulation of allowed contract terms.
The current Copyright Act, through references to general contract law, already allows a contracting party to challenge the reasonableness of individual contractual clauses. Some stakeholders have expressed the concern that additional regulation on contractual terms might stifle fair competition and parties’ possibilities to adapt to new business models.
2014 will be a very busy year for the Ministry and copyright stakeholders in Finland.
Hanna Nylund is an associate at Procopé & Hornborg. She can be contacted at: hanna.nylund@procope.fi
Davide Battistelli is an associate at Procopé & Hornborg. He can be contacted at: davide.battistelli@procope.fi
