Finnish government proposes copyright law changes

Extended collective licensing scheme

The bill expands the extended collective licensing scheme to cover the licensing of reproduction rights and making available rights in TV programmes for network personal video recorders. As a result, collective management organisations (CMOs) will be able to license rights not only of their members but also of right holders that have not directly mandated the organisation to license their rights. A precondition of extended collective licensing is that the CMO has been authorised by the Ministry of Education and Culture to grant licences and that it represents numerous authors of works used in Finland in the given field. It should be noted, however, that if the right holder has assigned the mentioned rights in certain works to a broadcasting organisation (radio or television organisation), it is obliged to negotiate directly with the broadcasting organisation. Notably, the new provision does not allow non-CMO members to deny the licensing of their rights—undoubtedly an issue dividing stakeholders.

Clearer rules on transfer of rights by original author

The current Copyright Act allows—through reference to the general Contracts Act—a contracting party to challenge the reasonableness of individual contractual clauses. Following an objective set out in the government programme to provide clearer rules on contractual terms and fair remuneration for transfers of rights, the bill proposes to explicitly list the relevant terms from the Contracts Act in the Copyright Act in relation to transfers made by the original author. The relevant terms include, for example, that the agreement as a whole and the position of the parties shall be taken into account when assessing whether a certain contract clause is unfair. Unlike the Contracts Act, the bill also highlights that good contractual practices should be taken into account in the assessment. The level of remuneration and what constitutes fair compensation are not specified.

Improvements to website blocking injunctions

Interim website blocking injunctions are currently available, but right holders must bring legal action against the primary infringer in Finland within 30 days of the date of the interim injunction. This has turned out to be problematic since operators of websites facilitating piracy tend to hide their identity and operate from jurisdictions where they cannot be brought before court, in effect circumventing blocking injunctions. The new bill authorises courts to grant interim blocking injunctions when the primary infringer cannot be identified; nevertheless, actions against the primary infringer have to be initiated within two (as opposed to one) months. If not, the injunction will expire.

"This has turned out to be problematic since operators of websites facilitating piracy tend to hide their identity and operate from jurisdictions where they cannot be brought before court."

However, another noteworthy change is that when a primary infringer cannot be identified, the courts are authorised to make a separate order that intermediaries shall prevent (block) the making available of infringing content, provided certain conditions are met. The applicant shall demonstrate that, although efforts have been made, the primary infringer cannot be identified. If, for example, the primary infringer is operating from a jurisdiction where applicable law doesn’t allow identification based on an IP address, evidence of such an impediment would suffice. The order can be issued for a maximum of one year and even be prolonged on request (if reasonable grounds exist).

In the first draft of the bill, bandwidth throttling was suggested as a new alternative tool to disrupt the operation of illegal websites. The new ‘throttling order’ would have enabled courts to order internet service providers to slow down traffic to and from pirate websites. However, already during the preparatory consultations held by the ministry, a number of parties expressed doubts about the effectiveness and cost of throttling; therefore, it was not included in the final bill.

If approved by the parliament, the bill is set to become law on January 1, 2015.

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