English
1. Introduction
The new rules on technological protection measures were inserted into a new chapter 5 a of the Copyright Act covering §§ 50 a – e. This chapter also contains the new provisions regarding electronic rights-management information
2. Definition of Technological Measures
The definition of technological measures (Section 50 a) is similar to the definition in the directive. Protected technological measures are
· technologies, devices or components which
· in the normal course of their operation
· serve to prevent or restrict acts
· in respect to copyrighted works,
· which are not authorized by the author or subsequent right holders.
The protection coincides with the scope of copyright protection in the sense that the protection is only given to effective technological measures protecting a “copyright protected work”. Circumvention seems to be allowed if the technological measure protects material that is not copyrightable, has fallen into the public domain or does not cover an exclusive right defined in the Act.
Excluded from the legal protection of technological measures are circumvention of technological measures in order to conduct encryption research or in order to be able to listen to or view a work, provided the copy of the work has been legally acquired. The right to circumvent a technological measure in order to be able to listen to or view a work does not give the user a right to make copies of the work even for private use. This excludes the possibility to make back-up copies of works that are legally acquired, if a copy protection measure blocks copying.
3. Effectiveness
The requirement of effectiveness has not been specified the Act. According to the explanatory memorandum of bill 28/2004 a technological measure is to be deemed sufficiently effective when it is clear that the purpose of the technological measure is to protect the work. A technological measure is usually not to be deemed effective if it can be circumvented by accident.
4. Restricted Acts, Sanctions and Remedies
The provisions regarding prohibited acts coincides with the provisions of the Directive. Section 50 a concerns circumvention of technological measures, Section 50 b production and making available of products or services designed to or facilitating the circumvention of technological measures. The offering of such services or devices constitutes an unlawful act, if the devices or services:
· (a) are advertised for circumvention, or
· (b) have only a limited commercially significant purpose or use other than to circumvent technological measures, or
· (c) are primarily designed for circumvention
According to the explanatory memorandum a device or service shall not readily be regarded to be primarily designed for circumvention. At the same time it is clear that a device can be viewed as primarily designed for circumvention if the lawful uses are only ancillary.
Both penal sanctions and civil remedies are available. New penal sanctions are introduced. Penal sanctions against circumvention are provided for in the proposed Section 56 e 1) of the Copyright Act (teknisen suojauksen loukkausrikkomus) and Chapter 49 Section 3 of the Penal Code (teknisen suojauksen kiertämisrikos) and sanctions for the production and making available of the means for circumvention of technological measures in Section 56 e 2) of the Copyright Act (teknisen suojauksen loukkausrikkomus) and Chapter 49 Section 4 of the Penal Code (teknisen suojauksen kiertämiskeinorikos).
The Copyright Act provides for sanctions for misdemeanours (“small crimes”) and the Penal Code for felonies (“big crimes”). In both cases fault (gross negligence or intent) is required for liability to arise. For a felony to be at hand there is an additional requirement that the act might cause serious detriment or damage (to the interests of the rights holder). This requirement is fulfilled, for example, if a device or service enabling circumvention is made available on the internet.
The circumvention of technological measures or production and making available of goods or services enabling or facilitating the circumvention of technological measures may cause liability to pay damages or fair compensation. Forfeiture of goods is also available, i.e. products enabling the circumvention or copies of works from which the technological measure has been removed may be prescribed by the court to be seized and destroyed, altered in specific ways, conveyed to the injured party or rendered incapable of unauthorized use.
5. Exemptions and Exemption Procedure
According to Section 50 c a person who has legally acquired a copy of a work or access to a work protected by a technological measure has the right to use a work to the extent necessary in accordance with the following copyright exemptions;
· Section 14 paragraph 3 (the right to use a work in examination for the General Certificate of Education at Advanced level or similar examination),
· Section 15 (reproduction of radio and television transmissions in certain institutions, archives, libraries and museums),
· Section 16 (reproduction in certain archives, libraries and museums for the purpose of maintaining, restoring or archiving the material legally acquired by them),
· Section 16 a (right to make available a work for certain purposes in certain libraries and museums),
· Section 16 b (use of works in national archives),
· Section 16 c (use of works in the Finnish cinematographic archive),
· Section 17 (making works available for disabled persons),
· Section 25 d paragraph 2 (use by broadcasting companies in accordance with a legal obligation to record and preserve a work), or
· Section 25 f paragraph 2 (allowing broadcasting companies who are authorized to use a work, to make a copy of a work for broadcasting purposes).
The obligation to allow the uses mentioned in the exemptions above is applicable not only to the author, but also to anyone who has been authorized by the author to make the work available to the public.
The obligation to provide the means to use a work in accordance with these exemptions does not apply to works or other subject matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them (i.e. works made available on-line).
The obligation to allow the uses mentioned in the exemptions above is to be fulfilled primarily through voluntary means. In case this is not possible, the draft bill provides for an arbitration procedure. According to the Act only the users defined in the copyright exemptions mentioned above may request an arbitration procedure. This excludes other interested parties, such as users of libraries and museums, from bringing the case to arbitration.
It is not totally clear what will happen if the rights holder can not be found or does not for some other reason appear before the arbitration body. In these cases it is likely that the users may obtain the right to circumvent a technological measure on their own. The law does not clarify which means must be provided in order to enable circumvention by providing for affirmative measures (such as providing devices or services enabling the circumvention of the technological measure).
6. Neighbouring Rights and Database Rights
The provisions in Section 50 a to 50 d are also applicable to related rights.
7. Technological Protection of Software
The provisions in Section 50 a to 50 c are not applicable to software. When implementing the software directive the relevant provisions regarding the protection of technological protection of software was incorporated into the Finnish Copyright Act. According to Section 56 c
“any person who for the purpose of gain distributes to the public, or keeps in his possession to that end, any means whose sole purpose is the unauthorized removal or circumvention of a technical device that protects a computer program shall be sentenced to a fine for unauthorized distribution of a means of removing protection”.
The definition of technological protection measure has been tested in the Supreme Court case nr 2003:88 (KKO 2003:88). According to the court of 1st instance the written instructions on how to install a computer program in order to circumvent a technological measure, controlling whether the software to be installed is an authorized (i.e. original) copy of a computer program, was to be considered a “means of removing protection”. In conjunction with several other misdemeanors and felonies the accused was sentenced to one year in prison.
The Court of Appeal disagreed, emphasizing that “a means of removing protection” was not clearly defined in copyright law and that the explanatory memorandum only mentioned that a means of removing protection of software usually consisted of another computer program. Therefore a means of removing protection could only be a computer program or a similar means.
The Supreme Court stated that the word “means” implied that a written or oral instruction as such could not be regarded as a “means” of removing protection. The Supreme Court acknowledged, that the word “means” as used in the law and the explanatory memorandum was intended to cover also non-physical entities, and that a written or oral instruction is quite similar to a computer program. Nevertheless, the Supreme Court decided that the word “means” should not be interpreted broadly to include also written instructions as such. Therefore the defendant was freed on the account of unauthorized distribution of a means of removing protection.
The explanatory memorandum takes into consideration that a technological measure may take the form of a computer program. In those cases, it is allowed to study the functions of the software (reverse engineering) in accordance with the provisions set out in the law.
8. Miscellaneous & Controversial Subjects
Area codes (DVD) and other technological measures with several integrated functions
According to the explanatory memorandum DVD area codes, as they are used today, are not to be considered technological measures, as they do not prevent the distribution of works. Accordingly DVD area codes may be circumvented. The lawmaker has not considered the fact that many DVD area codes fulfill a double function; they also prevent the copying of films. It seems to be forbidden to circumvent technological measures with several integrated functions, if at least one of the functions is to prevent a right protected under copyright and if at least a part of the material protected by a technological measure is copyright protected.
Additionally, it is unclear how the user is supposed to be able to identify for which reasons a technological measure is protecting content in order to be able to evaluate whether the technological measure is protecting against acts belonging to the exclusive rights of the author.
The right to circumvent a technological measure in order to be able to view or listen to a work
The right to circumvent a technological measure in order to be able to view or listen to a legally acquired copy of a work was not provided for in the original bill introduced before parliament in 2002. This provision was only added to the draft bill of July 15, 2003, as a result of public uproar. It is still unclear how users could circumvent a technological measure for those purposes since a market for circumvention devices seems to be prohibited and most people probably lack the ability to circumvent on their own. The same goes for situations where authors, or those being authorized to make works available for the public, for some reason can not be forced to provide for the means to use a work in accordance with a copyright exemption as stated in Section 50 c, for instance, if they are based in a non-EU country.
Effect on fair compensation for private copying
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Effect on collective licensing (Section 26)
According to Section 26 individual licensing prevails over collective licensing. That is to say, if an individual contract is concluded for the usage of copyrighted works, the contracting parties are no longer bound by any collective agreement concerning that usage. The application of technological measures does not affect this principle. It is, however, unclear what would be decided if a technological measure would be in contradiction with the terms of a collective license, and where there would be no contract between the rights holder and the user (i.e. where the work is not provided on agreed contractual terms).
The draft bill introduces a new prohibition right (kielto-oikeus, förbudsrätt) in relation to the provisions on compulsory licensing in relation to the copyright exemptions. (Compulsory licensing, in accordance with the above stated collective licensing procedure, is a mechanism through which the legislator tries to meet both the interests of the public to receive and use content for educational or other purposes, and the interest of the rights holders to receive fair compensation). The draft bill does not define how the prohibition right may be used. In general, one would imagine that the prohibition right could be implemented through some kind of “prohibition lists” maintained by the copyright societies. Alternatively, a technological measure impeding a use that would otherwise be allowed under a collective license, would be seen as an act of prohibition in accordance with this new prohibition right. The draft bill does not tell whether or not the prohibition right may be used only ex ante (after the act of use) or also ex post (before the act of use) and whether the prohibition right can be carried out through some kind of prohibition lists, technological measures or some other means. The new prohibition right therefore seems to allow ignoring copyright restrictions or exemptions by applying technological measures or through other means also in those cases where a work is not offered on-line on agreed contractual terms.
Further problems not considered by the legislator
The bill introduces an explicit exemption from the prohibition to circumvent technological measures for encryption research. However, the right to circumvent technological measures for encryption research is very narrowly drafted, and does not specifically confer a right to communicate the research results to the public. This implies that a person conducting encryption research risks being indicted on the account of providing circumvention services, if he communicates his research results to the public.
It remains unclear if it is allowed to circumvent a technological measure in order to repair a product. A good reference point is the interpretation of the US Digital Millennium Copyright Act, where the US Copyright Office has decided that it is allowed to circumvent a failing technological measure or in order to repair filtering software. In the latter case, the work protected by a technological measure is a database consisting of addresses of internet sites to be filtered. The purpose of the technological measures is to prevent modifications of the database. Under to the draft copyright bill, circumvention for those or similar purposes seems to be prohibited, as the adaptation and modification rights belong to the exclusive rights of the author.
There has been very little public debate on whether or not the exceptions from the legal protection of technological measures are sufficient and appropriate.
According to Section 50 c the obligation to provide the means to use a work in accordance with the exemptions mentioned in that article does not apply to works or other subject matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them. As most of the works may be provided on these terms in the digital environment, the question arises what the fate of the copyright exemptions will be in the information society. As the legislator has not treated the question of unallowed or unreasonable terms it remains unclear how terms disallowing the use of a work in consistency with a copyright exemption shall be determined. However, the wording of the Copyright Act seems to allow terms undermining the copyright exemptions, especially considering the fact that according to Finnish legal doctrine copyright exemptions shall be interpreted narrowly (and allows terms narrowing down the application of copyright exemptions).
Author:
L.LM Viveca Still
Also available is the draft bill and the explanatory memoranda. They are only available in Finnish. Click here for the draft bill
Click here for the explanatory memoranda
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