Title of the citizens' initiative

Bringing sense to the Copyright Act

Date of the initiative
January 23, 2013
Form of the initiative
Bill
Case number of the Ministry of Justice
Subject Card OM 14/52/2013
Contents of the initiative
BILL TO AMEND THE COPYRIGHT ACT AND THE CRIMINAL CODE OF FINLAND


MAIN CONTENTS OF THE LEGISLATIVE PROPOSAL

The main goal of the legislative proposal is to amend the legislation in force
concerning excessive network surveillance and damages. The purpose of the
legislative proposal is not to make downloading [sharing] content under copyright
legal, but to make downloading [sharing] content protected by copyright by
individual people punishable as a copyright violation. A more serious form of the
act, a copyright offence, enables house searches, seizures, and large damages.
Those guilty of commercial or broad distribution of content protected by copyright
would still be convicted of copyright offences.

Secondarily, the legislative proposal aims to improve the status of artists and other
content producers as well as the development of new services based on network
technology.

The most important effect of the bill is the dismantling of the confrontation
between citizens and artists and the awakening of a constructive discussion on the
further development of copyright legislation.


INTRODUCTION

1. Current situation

The copyright legislation of Finland was significantly amended on 14 October 2005
with the adoption of the Act on the Amendment of the Copyright Act (821/2005)
and the Act on the Amendment of the Criminal Code of Finland (822/2005). The
legal amendments are based on the Government bill 28/2004, by which the
Copyright Act [was proposed] to be amended according to the required
amendments in the directive adopted in 2001 on the harmonization of certain
features of copyright and rights related to copyright in an information society. In
addition, the Copyright Act [was proposed] to be amended with certain other
amendments not provided by the directive as well as with technical revisions.
These other amendments not provided by the directive aroused broad public
discussion when the Act was being enacted and after its entry into force. They
included the definition of downloading content under copyright for private use as a
copyright offence.

The following describes problematic situations caused by the current legislation
and its legal practice.


1.1 The obscurity of the Act and the application of the principle of legality

When enacting the current Act, the Constitutional Law Committee stated
(Statement of the Constitutional Law Committee 7/2005 vp) that "As a result of
numerous partial amendments made to it for various reasons, the Copyright Act has
become quite complicated and obscure, and the bill under consideration does not in
every respect tend to increase the clarity and understandability of the regulation.
This is problematic because, in a modern society, copyright legislation applies to
almost all people. As a result of the development of communications technology,
private persons, as well as non-governmental organizations and the like, may ever-
increasingly be not only recipients and users but also producers and publishers of
messages protected by copyright. During the development of an information
society, communications with various technical tools have become practically
incessant, and communications may nowadays be involved in a large part of a
person's daily activities. For these reasons, copyright legislation is subject to
particular requirements of clarity and understandability."

In addition, the Constitutional Law Committee states that "The obscurity of the
Copyright Act may become problematic from the point of view of the specificity
requirement included in the principle of legality in criminal cases enacted in
section 8 of the Constitution of Finland. According to it, the constituent elements of
each offence must be expressed in law with sufficient specificity so that whether an
action or omission is punishable can be anticipated based on the wording of the
provision. This requirement is not fulfilled in the best possible way when the
provisions on the copyright offence and the copyright violation receive their
essential contents through an obscure Copyright Act. According to the Committee,
this circumstance must be paid particular attention to when applying penal
provisions in individual cases." (Statement of the Constitutional Law Committee
7/2005 vp, http://www.eduskunta.fi/faktatmp/utatmp/akxtmp/pevl_7_2005_p.shtml
)


1.2 Juvenile delinquency

On 12 December 2012, the National Research Institute of Legal Policy subject to
the Ministry of Justice published a study (Youth delinquency and victimization
2012), according to which 79 percent of 15-16-year-old youth have downloaded
illegal content under copyright from the Internet. 71 percent of the respondents
reported that they had downloaded illegal content within the preceding 12 months.
There are not yet research results on the consequences of labelling an entire age
group as criminals.


1.3 Excessive coercive measures

The current Copyright Act enables sizeable coercive measures limiting the
protection of privacy and the sanctity of the home, such as house searches, seizures
of devices, and the determination of personal data on the basis of IP addresses from
an Internet service provider.

On 10 December 2012, the Parliamentary Deputy Ombudsman gave the decision
Dnro 4565/4/12, according to which the sensational house search and seizure of a
laptop computer by the police caused by the suspected offence of a 9-year-old girl
(so called "chisugate") was permitted according to the current Act. In order for
similar actions deemed unjust to be considered excessive in the future, the Act
must be amended.


1.4 Excessive damages

After the copyright reform entered into force on 1 January 2006, the courts have
sentenced numerous people to pay sizeable damages to organizations representing
copyright holders. The claims for damages have been based on calculations by
these organizations, based on which a price in euros has been determined for each
download based on the normal retail price of the work. Therefore, the calculations
make the assumption that each download would have caused a loss of income for
the artists represented by the organization. The assumption has widely been
criticized as unrealistic, and research data according to which content downloaded
for free has promoted the sales of paid content has even been presented.

Sentences for sizeable damages directed at individual people have been used to
strive to cause a deterrent effect that resembles the American-style punitive
damages model, which has previously been foreign to the legal system of Finland.
In punitive damages, the defendant is sentenced to pay the plaintiff additional
damages in addition to the actual damages, the purpose of which is to act as a
deterrent to get the defendant and other potential damaging parties to obey the
law.


1.5 Restrictions on use for teaching and research

The Copyright Council made a decision in the 1980s (against its own established
interpretation and the opinion of the presenter), according to which teaching in
classrooms is considered public use of works in terms of copyright. The desire of
copyright organizations to collect levies from schools, particularly for the use of
audiovisual works, was behind the decision. However, it also made teaching media
skills very difficult. The use of all AV works requires a permit, which, for example for
commercials, can only be obtained by requesting it from the advertising agency that
made the commercial. Similarly, for the most part, the use of foreign material for
translation exercises was made illegal by the decision of the Copyright Council.

From the point of view of scientific research, the problem with the current situation
is that even if abundant current research material was easily available on the
Internet, its use is in principle not allowed because the copyright legislation of
Finland does not include an exception for research activity. In the USA and in those
EU countries that have a (broad) special provision for research activity, researchers
and those researchers and companies that do research and development work have
a significant advantage compared with their Finnish counterparts. The situation is
further exacerbated by our small language area: Finnish-language material cannot
be found on many research topics, so the English-language material found through
the Internet is needed in order to promote quality research. Therefore, the current
copyright legislation in force also puts a strain on Finnish scientific work and
innovation potential.


1.6 Freedom of expression of the producers of works

The Finnish legislation has so far not taken a position on the acceptability of parody
and satire. Previous court practice supported the view of the acceptability of the
mentioned forms of art, but the decision of the Copyright Council 2010:3 and a
judgement of a court of appeal based on it called the situation into question.
However, the EU Copyright Directive allows an exception involving parody and
satire. For example in the United Kingdom, an exception is currently being planned
to be included as an express part of the law of the country.


1.7 Negotiating position of the producers of works

Even though the copyright system was originally born to protect - at least in theory
- particularly the authors of works, the publishing companies in the background
have in fact benefited the most from the system. There is reason to wonder to what
extent companies with significant market power in Finland have taken advantage of
their position by pressuring the actual producers into unreasonable contract terms.
This problem has also been recognized in the Government Programme in force:
More specific provisions than currently will be enacted in the Copyright Act on the
reasonable terms and equitable remuneration that are required for copyright
transfer. (Government Programme 2011, p. 36) The phenomenon occurs widely in
various areas of the media sector (the media, record companies, etc.), so it cannot
be solved with solutions such as narrow individual provisions on book publishing
contracts.



2. Goals and main propositions of the legislative proposal

The legislative proposal aims to clarify the contents of the Copyright Act
(404/1961) so that the Act will return to the state that prevailed before the reform
of the Criminal Code and the Copyright Act in 2005 to the extent that the directives
regulating the matter allow national latitude for Finland. The legislative proposal
also proposes improvements to the rights of the authors of works. In addition, the
legislative proposal takes into account the development of network technologies,
tackles the problems in teaching and research, removes the possibility of network
surveillance, and proposes the adoption of a legal provision enabling the
modification of contract terms. The right of artists to prohibit organizations from
taking legal action against individual citizens is also added to the Act.


3. Effects of the legislative proposal


3.1 Effects for citizens

The most important effect of the bill is the increase in the legitimacy of the
copyright system. As a result of the bill, copyright returns to being a positive
phenomenon that protects the justified rights of authors to works, but does not
prevent the use of works for public good.


3.2 Effects for content producers

The bill improves the position of freelance content producers as a contracting party
by bringing a requirement of reasonableness into contract terms. The authority of
content producers is also improved by giving them the right to prohibit interest
groups from taking legal action against individual citizens.


3.3 Effects on the operation of copyright organizations

The bill has economic effects for copyright organizations. For example, the
exemption of use for teaching and research from copyright levies reduces the
revenue stream of the organizations. The reduction of court-ordered damages also
affects the revenue stream of copyright organizations. However, copyright
organizations at the same time save on monitoring resources, which can be
directed, for example, to information and education activities.


3.4 Effects on business

The bill has positive effects on the development of Finnish business. Unclear and
restrictive provisions have tended to slow innovations, for example on the part of
digital content services. By clarifying regulation, for example on the part of
technical intermediate copies and network-attached storage, the bill enables,
among others, startup companies that work with digital content to develop
internationally competitive and interesting services that operate via the internet.
Finland would be one of the global pioneers in this field, which could lead to, for
example, the concentration of the industry.


3.5 Effects on the operations of authorities and economic effects

The bill has effects first and foremost on the operations of the police and the
judicial system. The investigation of copyright offences takes up a significant
amount of police resources, which, as a result of the bill, would become available
for the investigation of more serious offences. Since the threshold of a copyright
offence is low, the police have used sizeable resources to investigate cases and
enforce coercive measures regardless of whether they involve downloading a single
song from the Internet or extensive commercial piracy. Furthermore, judicial system
resources are spared when the organizations monitoring copyright do not burden
district courts with their petitions to get user IP address information or to
disconnect user subscriptions. The bill has positive economic effects on the
teaching and research activity of the public sector. As a result of the bill, copyright
levies would no longer be paid for the use of content for teaching and research.


4. Relation to the Constitution

The purpose of the bill is to narrow the gaps that have been created in the
Constitution with the current copyright legislation. This bill is especially meant to
narrow the gap related to confidential communications protected in section 10 of
the Constitution. The bill would improve the application of the principle of legality
in criminal cases (section 8 of the Constitution) by clarifying and limiting the
criminal liability of private persons. The bill can also be considered to support the
application of freedom of speech protected in section 12 of the Constitution.

As a result of the bill, copyright would become somewhat more limited than
currently, but since it involves a purely statutory right and not "classic property",
this cannot be considered to be problematic in relation to the protection of property
in section 15 of the Constitution.

For these reasons, the bill can be considered according to the normal procedure.


5. Preparation of the matter

The citizens' initiative aiming to amend the copyright legislation has been prepared
in an open and participatory manner within the framework of the Open Ministry
service. The campaign was published on 21 November 2012, and the first draft of
the bill was published on 28 November 2012. Comments and suggestions on the
draft law were requested by email from copyright organizations on 10 December
2012. The draft law has been amended based on public discussion and received
feedback. The legislative proposal has on purpose departed from the recommended
format for Government bills in order to make the legislative proposal more clearly
understandable for citizens, Members of Parliament, and the media.

The citizens' initiative was officially instituted on 23 January 2013, and the
collection period ends at the latest after 6 months on 23 July 2013. The initiators of
the initiative are Joonas Pekkanen, Aleksi Rossi, Timo Vuorensola, Roope Mokka, Alf
Rehn, Alex Nieminen, Tarmo Toikkanen, Tanja Aitamurto, Dan Koivulaakso, Taneli
Tikka, Kari A. Hintikka, Saku Sairanen, and Ville Oksanen.

The representative of the initiative is Joonas Pekkanen,
joonas.pekkanen@avoinministerio.fi, 050-5846800, and the substitute is Aleksi
Rossi, aleksi.rossi@avoinministerio.fi.


6. Consideration in Parliament

The Government bill for a Citizens' Initiative Act (46/2011) states that In the
parliamentary procedure, the citizens' initiative could, however, be comparable to a
bill signed by at least a hundred members, which has actual priority in the debate in
committee over other private member's bills. The legislative proposal should,
therefore, be considered in Parliament without delay, and the representatives of the
initiative should be heard in all committees. Since it is a citizens' initiative and it
involves a strong public interest, the debates in committee should, against
customary procedure, be held as public events. The decision on the publicity of the
debates can be made in a committee in accordance with section 50(2) of the
Constitution. The demand for the publicity of the debate is supported by the fact
that the officials who prepared the matter are normally present in debates in
committee through expert hearings. In the case of more than 50,000 citizens, this is
naturally not possible, but the need is the same.

The legal amendments involving the Copyright Act have usually been debated in
the Education and Culture Committee. However, the main points of this amendment
proposal involve computer networks, which is why a more appropriate primary
committee for debates would be the Transport and Communications Committee. On
the other hand, based on the subject matter, the Committee for the Future would
also be suitable for debating the bill, and it should request a report on the matter
from applicable Committees (the Education and Culture Committee, the
Constitutional Law Committee, the Legal Affairs Committee, and the Transport and
Communications Committee). The Committee for the Future is likely to have the
best knowledge of the subject matter, and the committee is also the most
experienced with crowdsourced projects.



DETAILED RATIONALE

1. Commentary to the bills


1.1. ACT ON THE AMENDMENT OF THE COPYRIGHT ACT


Section 3(2) (Right to parody and satire)

The wording of section 3(2) of the Copyright Act is proposed to be amended as
follows:

"A work may not be altered in a manner which is prejudicial to the author's literary
or artistic reputation, or to his individuality; nor may it be made available to the
public in such a form or context as to prejudice the author in the manner stated.
This right does not, however, limit the use of works for independent new parody or
satire."

The wording of the subsection in force is as follows: "A work may not be altered in a
manner which is prejudicial to the author's literary or artistic reputation, or to his
individuality; nor may it be made available to the public in such a form or context
as to prejudice the author in the manner stated."

The purpose of the amendment is to add to the Copyright Act a clear mention that
parody and satire are permitted, notwithstanding the moral rights of the author.
The need to clarify the legal provision appears, for example, from the decision of
the District Court of Helsinki (R 09/2761), which was affirmed by the Helsinki Court
of Appeal and by the Copyright Council. The decision created categories for
acceptable and unacceptable parody. After the proposed amendment, the moral
rights of an author cannot be used to censor any form of parody or satire. However,
a precondition is that the parody or satire itself cross the threshold of a work, which
must be markedly low. For example, already changing one word to another
throughout the text may fulfill this criterion if the change creates a decisive
parodization of the message of the work.


Section 4(2) (Technical intermediate copies)

The wording of section 4(2) of the Copyright Act is proposed to be amended as
follows:

"If a person, in free connection with a work, has created a new and independent
work, his copyright shall not be subject to the right in the original work. The making
of technical intermediate copies needed to create a new work is permitted,
notwithstanding the provisions of section 2 on the right to make copies of a work,
when it involves acts that are an inseparable and necessary part of the technical
process needed to create a new work."

The wording of the subsection in force is as follows: "If a person, in free connection
with a work, has created a new and independent work, his copyright shall not be
subject to the right in the original work."

The amendment facilitates the creation of so-called transformative works by
leaving the technical intermediate copies created during the process of creating the
work outside the protection. The amendment streamlines and increases the
efficiency of the creation of new copies of works.

The definition of technical copies would be the same as the one used for technical
intermediate copies in section 11a.


Section 11(5) (Private copying)

The bill proposes to repeal section 11(5).

The wording of the subsection in force is as follows: "A limitation on copyright as
provided in this Chapter does not permit the reproduction of a copy of a work which
has been made or made available to the public contrary to section 2 or whose
technological measures have been circumvented in violation of section 50a(1). The
provisions of this subsection shall not, however, pertain to the use of works under
sections 11a, 16, 16a!16c or 22 or under section 25d(2) or (5)."

The purpose of the amendment is to restore the legal state that prevailed before
the amendment of the Copyright Act (821/2005) on the part of the so-called lawful
source. According to the bill, the lawful use of a copy of a work would not be tied to
a lawful source. The most significant effect of the amendment is that, in the future,
the making of private copies for one's own use would be allowed regardless of the
quality of the used source. The amendment is also essential from the point of view
of the application of the principle of legality: it is often difficult for a user to assess
whether the content of online service providers (YouTube, for example) is lawful or
not. The Netherlands, among others, has decided to clarify the law with similar
contents on the part of private copying.


Section 12(2) (Network-attached storage)

The wording of section 12(2) of the Copyright Act is proposed to be amended as
follows:

"It is also permitted to have copies made by a third party for the private use of the
party ordering the copies. Private use also includes saving works in online services
managed by the user, but maintained by third parties."

The wording of the subsection in force is as follows: "It is also permitted to have
copies made by a third party for the private use of the party ordering the copies."

The purpose of the amendment is to clarify the interpretation of the section. The
wording in force gives the consumer the opportunity to have a private copy made
by a third party, but as services operate more and more often through the Internet,
the provision must be specified. The amendment enables, for example, the
development of various lawful network-attached storage services (TV-kaista, for
example). The contents of the provision must be interpreted expansively so that
services fall in the scope of private copying whenever a user defines the contents of
the material being saved in them. The definition may also be given as general
descriptions ("save all news broadcasts").

The amendment does not affect the public use of works, and it does not, therefore,
affect the operation of, for example, services involving the open network
distribution of photographs (Instagram, for example). The amendment significantly
expands the scope of lawful private copying, which must be taken into account in
planning the magnitude and the method of collection of a levy.


Section 12(3) (Having a private copy made)

The wording of section 12(3) of the Copyright Act is proposed to be amended as
follows:

"The provisions of subsection 2 shall not apply to the reproduction of utility articles
or sculptures, or the reproduction of any other work of art by artistic means."

The current wording of the subsection is as follows: "The provisions of subsection 2
shall not apply to the reproduction of musical works, cinematographic works, utility
articles or sculptures, or the reproduction of any other work of art by artistic
means."

The purpose is to clarify the interpretation of the Act so that digital services may be
used to have all kinds of works made or so that identical criteria would be used for
various types of works.


Section 14(2) (Use for teaching and research)

The bill proposes to add a new subsection 2 to section 14 that would read as
follows:

"Teaching activity in a classroom or in a similar space is not considered public use
of works. The use of works created for other purposes than teaching or research is
permitted for the purposes of teaching or research, notwithstanding the provisions
of section 2."

The amendment clarifies the limits of teaching and research related to the law of
copyright. A classroom may also be a virtual space if it involves similar established
teaching activity as in normal teaching. However, the amendment does not affect
the use of works produced specifically for use for teaching or for research purposes,
maintaining the current state in this respect. In other words, the principles
involving the use of, for example, textbooks or software produced for research use
remain unchanged. Authors are also still able to ban the use of works if the use
would violate the moral rights to the works referred to in section 3.


Section 26(3) (Artists' right to parallel licensing and prohibition)

The bill proposes to add a new subsection 3 to section 26 that would read as
follows:

The conditions of approval also include 1) that organizations must allow for their
members parallel licensing of their own works with open licences; 2) that
organizations must offer for their members a way to prevent legal proceedings
against individual citizens; and 3) that organizations must offer a client contract
where the levy paid for the public performance of a work covers the re-
mechanization of the work required for this purpose.

It is a three-part addition that, first of all, forces copyright organizations to allow for
their members the use of open licences. Open licences in the meaning of the
section include, for example, various Creative Commons licences and all licences
approved by the Open Source Initiative. Various licences enabling free use for DJs
also fall within the definition. Secondly, copyright organizations must offer for their
members a way to prevent legal proceedings against individual citizens (cf. so-
called Chisugate, where the artist had not even been notified that her rights were
being used to charge a 9-year-old girl. In practice, this can be implemented with an
opt-in register where members can register if they want to allow such activity.
Thirdly, organizations that license works with a mechanization levy must offer a
client contract especially for use by DJs/VJs where the mechanization levy is
covered by the levy paid for the public performance of works.


Section 29 (Requirement of reasonableness)

The wording of section 29 of the Copyright Act is proposed to be amended as
follows:

"When an author further transfers rights of use or a licence for a work, he has a
right to remuneration agreed to in a contract. If the magnitude of the remuneration
has not been defined, an equitable remuneration is considered to have been agreed
upon. If the agreed remuneration is not equitable, the author may demand from his
contracting party such an amendment of a contract term that ensures equitable
remuneration for the author. If the contracting party does not agree to the
application of the amendment, the author has a right to cancel the contract.

A remuneration based on the common remuneration standard (section 29a) is
equitable. A remuneration is equitable also if it corresponds to what in business at
the time of entering into the contract can be considered a common payment, taking
into consideration the content and scope of the granted right of use, especially the
duration and timing of use as well as the circumstances in their entirety.

When a contract departs from the above provisions of subsections 1 and 2 to the
detriment of an author, the author has a right to cancel the contract. The same
applies also when the provisions have been evaded with other kinds of actual
actions. The author may, however, transfer a non-exclusive right of use without
remuneration. This statute does not affect the right of an author to issue open
licences for his works.

An author does not have a right to the remuneration referred to in sentence 3 of
subsection 1 if the remuneration to be paid for the use of his work has already been
agreed to in a collective agreement.

Otherwise, the adjustment of an unreasonable condition in an agreement involving
copyright shall be governed by the provisions of the Contracts Act (228/29)."

The wording of the section in force is as follows: "The adjustment of an
unreasonable condition in an agreement on a transfer of copyright shall be
governed by the provisions of the Contracts Act (228/29)."

The purpose of the amendment is to add to the Copyright Act a requirement of
reasonableness written based on section 32 of the German Copyright Act that
guarantees an equitable level of remuneration for an author for the use of works.
The equitableness is determined by common practice in the industry. What is
considered common practice could become apparent, for example, from a collective
agreement or a general standard of remuneration published by the Copyright
Council. Other contract terms would still be governed by the general provisions of
the Contracts Act on the modification of contracts.


Section 28a (General standard of remuneration)

The bill proposes to add a new section 28a to chapter 3 that would read as follows:

"In order to be able to define the equitableness of remuneration in a manner
referred to in section 29, the organizations of authors and the organizations
representing industrial users or individual industrial users will among themselves
affirm a general standard of remuneration. The general standard of remuneration
must take into account the distinctive characteristics of the regulated industry,
particularly the structure and size of the user base. A collective agreement takes
precedence over a general standard of remuneration.

The organizations referred to above in subsection 1 must be representative and
independent, and they must have the necessary authority to affirm a general
standard of remuneration.

A general standard of remuneration is affirmed in the Copyright Council if the
parties so agree. The matter can be taken to arbitration referred to in section 54 in
accordance with a written demand of a party if

1. the other party has not started negotiations within three months of when the
other party demanded in writing to start them, or if

2. the negotiations are still unsuccessful a year after the written demand to start
them, or when

3. one party declares that the negotiations have definitively ended without
success."

The legal provision defines the procedures pertaining to the contents of the general
standard of the level of remuneration. The Copyright Council acts here as the
primary organization for the consideration of the matter that registers the
propositions made by the parties. If, however, the parties cannot reach agreement,
an arbitration process will be resorted to in the matter.


Section 54(1) (Taking the requirement of reasonableness into account in
arbitration)

The bill proposes to add a new paragraph 7 to the list in section 54(1) that would
read as follows:

7) a dispute pertaining to the reasonableness of a contract referred to in section
29a

A dispute pertaining to the reasonableness of contracts is added to the legal
provision to the list pertaining to arbitration. Arbitration has thus far become the
main procedure in copyright disputes. Once a special copyright court begins
operations as part of the Market Court, it must be considered whether it might
possess the required knowledge that could in the future replace the use of the
expensive and non-public arbitration procedure.


Section 55(1) (The composition of the Copyright Council)

The wording of section 55(1) of the Copyright Act is proposed to be amended as
follows:

"The Government shall appoint a Copyright Council to assist the Ministry of
Education in the handling of copyright matters and to issue statements regarding
the application of this Act. The council must include a balanced representation of
authors, the commercial users of works, educational organizations, and the
representatives of consumers. The council must use the best scientific research data
in the field as support for its decisions."

The wording of the subsection in force is as follows: "The Government shall appoint
a Copyright Council to assist the Ministry of Education in the handling of copyright
matters and to issue statements regarding the application of this Act."

The amendment updates the composition of the Copyright Council to correspond to
the changed reality that there are more main parties than before. In addition to
traditional publishers, commercial users also include, for example, Internet service
providers and companies offering network-attached storage services.
Representation from the software and gaming industry must also be included. A
duty to use research data that satisfy academic standards as broadly as possible is
also added to the Act. In practice, this requires that scientific experts also be chosen
as members of the council.


Section 56a(5) (Decriminalization of use for teaching and research)

The wording of section 56a(5) of the Copyright Act is proposed to be amended as
follows:

"The making of single copies for private use of a computer-readable computer
program or a database which has been published or copies of which have been sold
or otherwise permanently transferred with the consent of the author, or the making
of single copies for private use of a work contrary to section 11(5) shall not be
considered to constitute a copyright violation. Actions contrary to this Act that
occur for the non-commercial purpose of teaching or research shall also not be
considered to constitute a copyright violation."

The wording of the subsection in force is as follows: "The making of single copies
for private use of a computer-readable computer program or a database which has
been published or copies of which have been sold or otherwise permanently
transferred with the consent of the author, or the making of single copies for
private use of a work contrary to section 11(5) shall not be considered to constitute
a copyright violation."

The amendment excludes the violations of the Act occurring in connection with
non-commercial use for teaching and research from the copyright violation. Other
civil sanctions (compensation and damages) may still be considered when these
conditions are met. The amendment would not change, for example, the existing
established interpretation regarding "single copies".


Section 57(1) (Determination of the duty to compensate)

The wording of section 57(1) of the Copyright Act is proposed to be amended as
follows:

"Anyone who in violation of this Act or a direction given under section 41(2) uses a
work or imports a copy of work into the country or brings a copy of work onto the
territory of Finland for transportation to a third country shall be obliged to pay a
reasonable compensation to the author. The illegal reproduction of a work for
private use shall be subject to compensation only in the case that the maker of the
copy has known or should have known that the material copied has been made
available to the public in violation of this Act. The duty to compensate applies only
to a person who has himself performed the making of a copy of work."

The wording of the subsection in force is as follows: "Anyone who in violation of
this Act or a direction given under section 41(2) uses a work or imports a copy of
work into the country or brings a copy of work onto the territory of Finland for
transportation to a third country shall be obliged to pay a reasonable compensation
to the author. The illegal reproduction of a work for private use shall be subject to
compensation only in the case that the maker of the copy has known or should
have known that the material copied has been made available to the public in
violation of this Act."

The amendment limits the levy to only those copies that the person has made
himself. This clarifies the liability of system administrators in particular. After the
amendment, system administrators would no longer be liable to pay compensation
for copies made by users. The amendment, therefore, prevents the levies of
hundreds of thousands of euros that are now sentenced in trials involving peer-to-
peer networks. Even after the amendment, it is possible to claim damages from a
system administrator that has violated the Act, but it must be based on actual
evidence of resulting damage.


Sections 60a-c (Delimitation of private network surveillance)

The initiative proposes to repeal sections 60a-60c of the Copyright Act.

The amendment removes the sections that were added to the Act in the Legal
Affairs Committee after three days of preparation when the amendment of the
Copyright Act (821/2005) was considered in Parliament and that make it possible
for rightholders to have a civil opportunity to determine the IP number of a user
and to demand the disconnection of the network connection. A more appropriate
law to define the duties of a service provider on the part of the illegal material of
users is included in the Information Society Code
(http://www.lvm.fi/tietoyhteiskuntakaari) under preparation that should define
general rules concerning the matter regardless of the title of the offence.

The claim that EU directives required the inclusion of these sections was commonly
circulated during the preparation of the amendment of the Copyright Act
(821/2005). It should be noted that on this part the application for precautionary
measures in chapter 7, section 3 of the Code of Judicial Procedure meets the
requirement regarding the application for an injunction set forth in the directives.
The requirements of the legal provision in question are certainly quite high, but it is
indisputable that it in any case enables the possibility of the application required by
the directive (2001/29/EY). The directive does not define the grounds for granting
the application.



1.2 ACT ON THE AMENDMENT OF CHAPTER 49 OF THE CRIMINAL CODE OF
FINLAND

Chapter 49, section 1(4)

The initiative proposes to repeal chapter 49, section 1(4) of the Criminal Code of
Finland.

The wording of the subsection in force is as follows: "Also a person who uses a
computer network or computer system to violate the right of another to the objects
of protection referred to in subsection 1 so that the act is conducive to causing
considerable detriment or damage to the holder of the right that has been violated,
shall be sentenced for a copyright offence."

The bill restores the copyright offence of the Criminal Code of Finland involving
network distribution to the state that prevailed before the amendment of the
Criminal Code of Finland (822/2005) in connection with the amendment of the
Copyright Act (821/2005). In connection with the amendment, the requirement for a
commercial purpose for an act occurring in computer networks was removed from
the provision of the Criminal Code of Finland involving the copyright offence. In
other words, according to the current law, the constituent elements of a copyright
offence do not include a requirement for a commercial purpose, meaning that
offences for non-commercial purposes are also punishable as copyright offences.
The purpose of the bill is to abandon this: according to the bill, only offences for
commercial purposes are considered copyright offences. Therefore, non-commercial
copyright offences would in the future be sanctioned as copyright violations.


2. EFFECTIVE DATE OF THE LAW

The implementing provisions of the bills included in the legislative proposal
propose that the legal amendments enter into force on 1 January 2014.
______________________________________________________________
Rationale
BILLS

1. Act on the amendment of the Copyright Act

In accordance with the decision of Parliament

sections 11(5), 60a, 60b, and 60c of the Copyright Act enacted on 8 July 1961
(404/1961) are repealed,

as sections 11(5), 60a, and 60b are in law 821/2005, and section 60c is in law
679/2006,

sections 3(2), 4(2), 12(2 and 3), 29, 55(1), 56a(5), and 57(1) are amended,

as sections 12(2 and 3) are in law 446/1995, section 29 is in law 960/1982, section
55(1) is in law 442/1984, and sections 56a(5) and 57(1) are in law 821/2005, and

a new subsection 2 is added to section 14, as it is in law 821/2005, a new
subsection 3 is added to section 26, as it is in law 821/2005, a new section 28a is
added to the Act, and a new paragraph 7 is added to section 54(1), as it is in law
821/2005, as follows

Section 3

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A work may not be altered in a manner which is prejudicial to the author's literary
or artistic reputation, or to his individuality; nor may it be made available to the
public in such a form or context as to prejudice the author in the manner stated.
This right does not, however, limit the use of works for independent new parody or
satire.

Section 4

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If a person, in free connection with a work, has created a new and independent
work, his copyright shall not be subject to the right in the original work. The making
of technical intermediate copies needed to create a new work is permitted,
notwithstanding the provisions of section 2 on the right to make copies of a work,
when it involves acts that are an inseparable and necessary part of the technical
process needed to create a new work.

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Section 12

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It is also permitted to have copies made by a third party for the private use of the
party ordering the copies. Private use also includes saving works in online services
managed by the user, but maintained by third parties.

The provisions of subsection 2 shall not apply to the reproduction of utility articles
or sculptures, or the reproduction of any other work of art by artistic means.

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Section 14

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Teaching activity in a classroom or in a similar space is not considered public use of
works. The use of works created for other purposes than teaching or research is
permitted for the purposes of teaching or research, notwithstanding the provisions
of section 2.

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Section 26

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The conditions of approval also include 1) that organizations must allow for their
members parallel licensing of their own works with open licences; 2) that
organizations must offer for their members a way to prevent legal proceedings
against individual citizens; and 3) that organizations must offer a client contract
where the levy paid for the public performance of a work covers the re-
mechanization of the work required for this purpose.

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Section 28a

In order to be able to define the equitableness of remuneration in a manner
referred to in section 29, the organizations of authors and the organizations
representing industrial users or individual industrial users will among themselves
affirm a general standard of remuneration. The general standard of remuneration
must take into account the distinctive characteristics of the regulated industry,
particularly the structure and size of the user base. A collective agreement takes
precedence over a general standard of remuneration.

The organizations referred to above in subsection 1 must be representative and
independent, and they must have the necessary authority to affirm a general
standard of remuneration.

A general standard of remuneration is affirmed in the Copyright Council if the
parties so agree. The matter can be taken to arbitration referred to in section 54 in
accordance with a written demand of a party if

1. the other party has not started negotiations within three months of when the
other party demanded in writing to start them, or if

2. the negotiations are still unsuccessful a year after the written demand to start
them, or when

3. one party declares that the negotiations have definitively ended without success.

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Section 29

When an author further transfers rights of use or a licence for a work, he has a right
to remuneration agreed to in a contract. If the magnitude of the remuneration has
not been defined, an equitable remuneration is considered to have been agreed
upon. If the agreed remuneration is not equitable, the author may demand from his
contracting party such an amendment of a contract term that ensures equitable
remuneration for the author. If the contracting party does not agree to the
application of the amendment, the author has a right to cancel the contract.

A remuneration based on the common remuneration standard (section 29a) is
equitable. A remuneration is equitable also if it corresponds to what in business at
the time of entering into the contract can be considered a common payment, taking
into consideration the content and scope of the granted right of use, especially the
duration and timing of use as well as the circumstances in their entirety.

When a contract departs from the above provisions of subsections 1 and 2 to the
detriment of an author, the author has a right to cancel the contract. The same
applies also when the provisions have been evaded with other kinds of actual
actions. The author may, however, transfer a non-exclusive right of use without
remuneration. This statute does not affect the right of an author to issue open
licences for his works.

An author does not have a right to the remuneration referred to in sentence 3 of
subsection 1 if the remuneration to be paid for the use of his work has already been
agreed to in a collective agreement.

Otherwise, the adjustment of an unreasonable condition in an agreement involving
copyright shall be governed by the provisions of the Contracts Act (228/29).

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Section 54

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7) a dispute pertaining to the reasonableness of a contract referred to in section
29a

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Section 55

The Government shall appoint a Copyright Council to assist the Ministry of
Education in the handling of copyright matters and to issue statements regarding
the application of this Act. The council must include a balanced representation of
authors, the commercial users of works, educational organizations, and the
representatives of consumers. The council must use the best scientific research data
in the field as support for its decisions.

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Section 56a

The making of single copies for private use of a computer-readable computer
program or a database which has been published or copies of which have been sold
or otherwise permanently transferred with the consent of the author, or the making
of single copies for private use of a work contrary to section 11(5) shall not be
considered to constitute a copyright violation. Actions contrary to this Act that
occur for the non-commercial purpose of teaching or research shall also not be
considered to constitute a copyright violation.

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Section 57

Anyone who in violation of this Act or a direction given under section 41(2) uses a
work or imports a copy of work into the country or brings a copy of work onto the
territory of Finland for transportation to a third country shall be obliged to pay a
reasonable compensation to the author. The illegal reproduction of a work for
private use shall be subject to compensation only in the case that the maker of the
copy has known or should have known that the material copied has been made
available to the public in violation of this Act. The duty to compensate applies only
to a person who has himself performed the making of a copy of work.

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This act enters into force on 1 January 2014.

2. Act on the amendment of chapter 49 of the Criminal Code of Finland

In accordance with the decision of Parliament

chapter 49, section 1(4) of the Criminal Code of Finland (39/1889) enacted on 19
December 1889, as it is in law 821/2005, is repealed.

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