Changes to the Finnish Copyright Act
On 27 February 2023, the Finnish parliament approved amendments to the Finnish Copyright Act (404/1961) and the Finnish Electronic Communications Services Act (917/2014). The amendments will become effective as of 3 April 2023. In this article, we examine the most significant changes to the Copyright Act.
The aim of the amendments is to implement two EU directives into national legislation:
- Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (the “DSM Directive”); and
- Directive (EU) 2019/789 on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and retransmissions of television and radio programs.
The above-mentioned directives are part of the European Commission’s Digital Single Market Strategy, which is intended to create a comprehensive framework for intellectual property protection in the light of the digital revolution and changed consumer behavior. The directives came into force on 6 June 2019, and they were supposed to be implemented into national legislation before 7 June 2021. However, the national implementation of the directives in Finland has been delayed.
We have summarized below the key amendments to the Finnish Copyright Act, which will become effective as of 3 April 2023.
Key amendments to the Finnish Copyright Act
New exception for text and data mining
As a general rule, authors have an exclusive right to decide whether their copyright-protected works may be reproduced or made available to the public. However, the Finnish Copyright Act includes some exceptions to the author’s exclusive right.
One of the new exceptions is to allow users to reproduce copies of works (or extracts thereof) for the purpose of text and data mining, provided that the user has legitimate access to the work. The users will also be allowed to store and retain copies of the works for the period necessary for the text and data mining purpose. For example, in the context of scientific research, this period includes the verification of research results.
With respect to text and data mining, the author can explicitly and in an appropriate manner reserve the right to make copies of the work, e.g., in terms and conditions for the purchase of content services or in terms in machine-readable format. However, as regards text and data mining for the purposes of scientific research, the rights provided to users under this exception cannot be reserved or limited by contractual or technical means.
New exception for parody, caricature, and pastiche
The use of copyright-protected works will now be explicitly allowed in parody, caricature, and pastiche. The aim is to promote freedom of expression in the digital environment where copyright-protected works are commonly used, e.g., in memes and other digital materials. The exception does not allow the use of copyright-protected works in, e.g., a discriminatory or offensive context.
Even before this new exception, parody has been considered acceptable in Finland, provided that it constitutes an original work. Since the new parody exception must be interpreted in the light of EU-level case law, parody no longer has to fulfill the originality requirement. In other words, the new exception will lower the standard for using copyright-protected works in parody.
Retransmission of radio and television broadcasts
The right of retransmission of radio or television broadcasts under a mandatory collective license is made technology neutral, both in terms of how the original broadcast is received and how it is retransmitted. Further, the collective license will concern also original broadcasts originating from Finland, in addition to other EEA states.
In the case of transmission through direct injection, both the broadcasting organization and the signal distributor participate in the same act of communication to the public. However, both the broadcasting organization and the signal distributor will be responsible for their parts of the act of communication to the public, in respect of which they must obtain authorization from rights holders, which could be obtained under a collective license.
Clarifications relating to collective licensing and collective management
The collective management organizations will have to be sufficiently representative of rights holders, based on powers given to them by rights holders, for the relevant types of works in relation to authors in a certain field.
The Finnish Ministry of Education and Culture approves collective management organizations based on applications for a maximum term of five (5) years and assesses the representativeness of the collective management organizations. Further, the collective management organizations must provide the Ministry of Education and Culture with a plan on how to inform authors of the licenses granted by the organization, the possibilities to apply for remuneration for exploitation of the works from the collective management organization, and the right to prohibit use of a work.
Remuneration for authors and performers and right of revocation
Authors (except authors of a computer program) and performing artists will have an express right to appropriate and proportionate remuneration if they transfer or license their exclusive rights of exploitation of their works. This right is mandatory and any contractual provisions to the contrary are unenforceable. Moreover, the Copyright Act now contains criteria for assessing whether or not a copyright transfer agreement includes an unreasonable condition.
The original author (except the author of a computer program) is also given a new right to receive on a regular basis, and in any event at least once a year, relevant and comprehensive information about the exploitation of the work, from the party to whom the author has exclusively licensed or transferred rights to their work. However, the obligation to give information does not concern situations where the author’s contribution is not significant having regard to the overall work.
In addition, an author who has exclusively transferred or licensed the rights to a work is entitled to revoke the rights granted or terminate the exclusive nature of such rights, if the work has not been exploited within a reasonable time following the transfer of rights. This right is expressly excluded in relation to works produced to fulfill obligations in an employment relationship. The right of revocation is mandatory and contractual agreements to the contrary, other than in collective licensing agreements, are unenforceable.
Related rights for performing artists
The Finnish Copyright Act provides for certain rights related to copyright (also known as “neighboring rights”) for, e.g., performing artists, producers, and photographers. However, the right for performing artists to control the distribution of their performances in video recordings has been more limited than with respect to audio recordings. This means that, e.g., actors have not been able to control television or theater distribution of their performances in movies.
From now on, all performing artists will have similar rights to control their performances in video and audio recordings. As a general rule, the related rights for both audio and video recordings will be in force for 50 years from the year of the performance.
New related right for press publications
Press publishers will have a new exclusive right to control the digital use of their press publications by reproducing them and by making them available to the public. In essence, this means that information society service providers, such as news aggregators or media monitoring services, will have to obtain necessary licenses for protected materials.
The new right for press publishers does not affect private or non-commercial use of press publications. Furthermore, it does not apply to hyperlinking or use of individual words or very short extracts.
Obligations for online content-sharing service providers
Online content-sharing service providers will be responsible for infringing materials uploaded by their users, unless they can demonstrate that certain obligations have been carried out.
Firstly, the service providers have to use their best efforts to obtain authorization for materials on their platform, as well as to ensure that infringing materials will not be uploaded onto their platforms. Secondly, the service providers need to act expeditiously to disable infringing content after being notified of an infringement by the rights holder. On 26 April 2022 (case C-401/19), the European Court of Justice ruled that these obligations must be interpreted in a manner that is not in conflict with freedom of expression and information.
In practice, service providers might use content recognition technologies that prevent users from uploading infringing materials onto their platform. According to EU-level case law, such technologies should sufficiently distinguish between lawful and unlawful materials. However, the amended text in the Copyright Act explicitly sets out that the application of these obligations may not lead to a general monitoring of online content. Service providers should also have processes in place for disabling infringing materials, as well as a complaint and redress mechanism for users whose content has been disabled.
In addition to the above, further noteworthy changes are being introduced, e.g., related to the use of works in teaching activities and the use of out-of-commerce works. Furthermore, the Finnish Electronic Communications Services Act is being amended to refer to the new responsibilities and obligations of online content-sharing service providers in the amended Copyright Act.
In conclusion, the amendments to the Finnish Copyright Act introduce both new exceptions to copyright and related rights, as well as new rights for authors and other rights holders (such as press publishers). The aim is to balance the rights and interests of the authors and the users of the works.
One of the most material changes relates to the right of authors (except authors of a computer program) and performers to receive appropriate remuneration, which is intended to improve the standing of authors and performers, and which also includes a reporting obligation for the party to whom the rights are transferred or licensed exclusively. Further, enforcing copyrights in the online content-sharing services may become more efficient due to the new obligations for service providers.
The changes to the Copyright Act and the Electronic Communications Services Act will be effective as of 3 April 2023.