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
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.
Címkék: citizens' initiative, Common Sense, copyright law, Finland, reform