1 August 2010Jurisdiction reports

Fighting the pirates: a new approach

On May 26, 2010, Finland’s Ministry of Education and Culture published its draft bill to address copyright infringements on file-sharing networks.

Groundwork for the bill was undertaken by an ad hoc committee of civil servants in 2009. The committee was appointed as follow-up to the discussions initiated by the ministry in 2008, with representatives of the film, music and games industries, Internet service providers and the authorities.

The aim of the Finnish discussions in 2008 was to find a new means of promoting electronic commerce in copyrighted creative content and reducing illicit file-sharing over the Internet. Corresponding discussions between rights holders and Internet service providers were also held in France, the UK and Sweden, among others.

There was a clear willingness in the industries to invest in electronic commerce and to develop a supply of online creative content, if it can be made profitable. There is consumer demand for creative content: it was noted that much work needs to be done to develop online services, improve consumer awareness, and change attitudes towards legal and illegal online services. There was also support for a new approach to combat illegal file-sharing.

The draft bill

After two years of work, the ministry is proposing that rights holders send notifications (warning messages) via Internet service providers to anonymous infringers on file-sharing networks. There is a proposal to amend the act on protection of privacy in electronic communications to oblige Internet service providers to pass on rights holders’ notifications to infringers, imposing new limits on the confidentiality of infringers’ electronic communications.

The legislation in force provides for civil and criminal sanctions against infringers. These require substantial time and investment from the parties and authorities involved.

“The new act would make it possible to warn infringers out of court, allowing them to rethink their behaviour, before going any further with the proceedings.”

Today, from the infringer’s point of view, the procedure starts when a rights holder files a civil action against an Internet service provider requesting disclosure of the infringer’s identity information or, in a criminal case, with a visit from the police. The new act would make it possible to warn infringers out of court, allowing them to rethink their behaviour, before going any further with the proceedings.

For privacy reasons, Internet service providers or authorities would not be required to maintain records of the recipients and the frequency of notifications. Consequently, the proposition would not include the sanction of suspending repeat infringers’ access to the Internet. In this respect, the draft bill differs from the approach taken in France.

One could argue that sending notifications to anonymous infringers without direct threat of sanctions would be like shooting in the air and hoping a bird flies over. On the other hand, there will still be legal means available to obtain infringers’ identity information via court proceedings. These different methods could be used concurrently. Every infringer should take note of the possibility of court proceedings when considering whether to continue or discontinue online copyright infringement.

Progress has also been made on non-enforcement issues. New business models have been invented. Online services are now more consumerfriendly. For instance, new pay-per-download music services offering music in an interoperable mp3 format have been launched.

A joint awareness campaign between content companies and Internet service providers is currently underway on TV and radio stations as well as on social media sites such as YouTube, Facebook and Twitter. Online commerce for creative content is increasing slowly but surely. Although many services are available in different commercial formats, illicit, free-of-charge services still have an overwhelming competitive position in the online world.

There is a need for new means to reduce online copyright infringement. But these new means against online copyright infringement can be introduced only after the established balance between copyright, protection of privacy and protection of confidentiality of communications has been carefully considered.

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