Finland: Bill For The Amendment of The Copyright Act Introduced

On 18 March 2004, the Finnish Government introduced bill HE 28/2004 to the Finnish Parliament aiming to implement the Digital Copyright Directive (2001/29/EC). The Directive should have been implemented in every member state by 22 December 2002, and the Commission has filed an action against Finland for failing to implement the Directive in time (case C-56/04, Commission v. Finland).

The bill proposes amendments to the Copyright Act and the Criminal Code. Some of the proposed amendments are of national origin and not related to the Directive. Along with the said bill, the Government also introduced another bill – HE 29/2004 – for the approval of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Bill 28/2004 was preceded by bill HE 177/2002 introduced two years earlier. The previous bill was left to expire by the Parliament in Spring 2003, as the Parliament did not have enough time to properly discuss it before the parliamentary election took place. The Parliament’s decision was preceded and probably influenced by extensive debate in the media. Both bills have been based on the work done by the Copyright Committee, whose conclusions were published in May 2002 in its 290-page Committee Report. The Government has strived to take into account all relevant critique expressed on the earlier bill and the report when drafting its current bill. The Ministry of Education prepared the new government bill 28/2004, of which a draft was published on 15 July 2003.

The main amendments set out in the current bill can be summarised as follows.

The circumvention of an effective technical measure used by a rightholder to protect his or her work would be prohibited. There would be some exceptions to this rule. For example, a person who has lawfully acquired a copy of a work could circumvent a measure placed to protect it from a copy he or she has legally purchased if the operation was done for the purpose of viewing or listening to the work. The technology used to implement the DVD area code system would not be considered to be an effective measure in the meaning of the law, and its circumvention would thus be permitted.

The manufacture, distribution and import of circumvention devices, as well as the provision of circumvention services, would also be prohibited in most circumstances. Further, removal of any digital management information embedded in a copy of a copyrighted work would be prohibited.

A person importing such copies of works, whose manufacture would have been illegal under the Finnish law, could be found guilty of a copyright offence – regardless of the quantity of the copies imported. The prohibition of importation of pirate copies concerns also importation for private purposes.

It is proposed that community exhaustion would be applied to rightholder's distribution right instead of international exhaustion. Notwithstanding the foregoing, a private person could sell or otherwise transfer such copies of copyrighted works, which he or she has imported to the EEC for his or her private purposes.

The intent to gain profit would be removed from the essential elements of copyright violation when the act is committed in an information network or with the means of an information system. Thus, for example, unlicensed large-scale distribution of works with peer-to-peer software – such distribution is typically not done for profit – could be more easily investigated as the perpetrator would be suspected of violation instead of offence.

The bill also includes, inter alia, amendments to the provisions on private copying. It is proposed that private copying from an illegal source would be prohibited. New extended collective licensing spheres are proposed. The phonogram producers’ and performers’ exclusive right would extend to cover on-demand network services of phonograms and fixed performances.

The bill is now being considered by cultural, legal and constitutional committees, and will then be debated over in the plenary session of the Parliament. It is rather unlikely that the Parliament would adopt the amendments to the Copyright Act before the summer holidays.