Changes to Copyright Law Heavily Debated

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Helsinki, 1 May, 2004 — Changes to Copyright Law Heavily Debated

In Finland, as in other EU countries, there is an ongoing debate and lobbying on changes to copyright legislation. The copyright system is being fitted into the new needs created by the information society and new technologies, through several EU directives. But there is a wide range of differences in opinions and interests, and national implementation is a difficult process, partly due to varying copyright traditions, too.

In Finland, as in other EU countries, there is an ongoing debate and lobbying on changes to copyright legislation. The copyright system is being fitted into the new needs created by the information society and new technologies, through several EU directives. But there is a wide range of differences in opinions and interests, and national implementation is a difficult process, partly due to varying copyright traditions, too.

Extensive Changes to Copyright Law Proposed

In March 2004, a proposal to changes to copyright law and criminal law was submitted to the Finnish parliament. According to the proposal, these changes would implement the EU directive 2001/29 “on the harmonisation of certain aspects of copyright and related rights in the information society”. The proposal has been criticized both for its interpretations of the requirements of the directive and for including changes that not related to the directive, thereby complicating the issues.

The directive requires thorough changes to copyright systems in EU member countries. There have been serious problems in implementing it. In Finland, there already was a proposal given to the parliament in 2002, but due to criticism it was effectively drawn back. The implementation status in EU countries is quite varying and not very harmonic. There is an incomplete survey of the status at wiki.ael.be/index.php/EUCD-Status, which also contains a link to the directive.

In particular, the directive specifies that national laws may contain exceptions to copyright only in special cases defined in the directive. It also extends the copyright holders’ right to financial compensation for use based on such exceptions. In Finland, this is to be implemented by extending the system where the prices of empty diskettes and CD-roms contain a tax-like fee, to be used in a certain way to give copyright owners a compensation for private copying of software and other material. This system has always been criticized, and there are even much stronger voices against extending it.

The Changing Role of Private Copying

Generally, the directive and the proposed law deal with the issues raised by the changing role of copyright. Exceptions to copyright, such as the right to make copies of works for private use, were originally established when copying mostly meant copying by hand. Copying a short article that way, or even using a photocopier, does not constitute a threat to publishers. But as encyclopedias and computer programs are sold on CD, it has become very easy to copy massive amounts of material, and there is no difference in quality between the copy and the original, if you don’t count the cover of the CD box.

And, in fact, copying of digital databases and programs for private use without authorization has already been made illegal in Finland and other EU countries, in the implementation of previous directives. Finland has made in interesting decision: such acts are illegal but not punishable as criminal offences, i.e. monetary compensation to the copyright holder would be the only possible consequence if you get caught.

Protecting Protection

One of the leading principles of the directive is that technologies for preventing unauthorized use of copyrighted works must be protected against “hacking”. Copy protection that is effective against an ordinary user cannot usually be made unbreakable to an expert, since complete protection would be very expensive, or make legal use too difficult, or both.

Thus, it has been regarded as necessary to support copyright by making software or other tools for breaking copy protection as illegal. This has already been partly implemented in existing legislation, as far as computer programs, databases, TV broadcasts, and Internet services. The directive requires that such measures be taken for all works under copyright or similar rights.

This has raised objections in Finland, on different grounds. In part, the copy protections themselves are often regarded as excessive, making even legal use too difficult. On the other hand, it is often subject to interpretations what constitutes a device for breaking copy protection, or what might be regarded as acceptable for the purposes of studying and research of software.

The Challenge of Networks

Computer networks combine the ease of digital copying with the effect of fast worldwide data transmission and searchability. Not surprisingly, many of the already implemented or forthcoming changes to copyright law are directly or indirectly coupled with the problems caused by the Internet and other networks.

On the basis of a directive on certain legal aspects of information society services, Finland already has legislation that provides for a “fast route” action against copyright infringements on the net. If your copyright is violated by a Web page, you can first try to contact the page owner and, if that does not help, then the service provider that hosts the Web page. The service provider will then need to remove the offending page, unless it wants to take the risk of getting sued. This system is somewhat vague and might be criticized on several grounds, but it seems to work well in typical cases.

But the nature of networks makes it difficult to trace down offenders. Current Finnish legislation does not give the police much possibility to investigate suspected copyright violations on the net, if the offender has taken relatively simple actions to hide his identity. Here the needs of forensics clash with the protection of privacy of communication, which is traditionally rather strong in Finnish law, though not always in practice.

“Enforcement” Directive Will Open New Cans of Worms

Although the 2001/29 directive is still incompletely implemented, with little experiences on its effects, there is already the next copyright directive coming. It has effectively been decided that in summer 2004, a new directive will be issued. It is unofficially called the “enforcement directive”, since it is meant to strengthen the legal and practical enforcement of copyright and other intellectual and industrial rights, rather than change their scope and content. This will mean, among other things, stronger legal actions against technologies for circumventing technical copyright protection.

The current proposal anticipates the “enforcement” directive to some extent. In particular, it contains the principle that a copyright infringement can be punishable under criminal law, and not only as a minor offence, even if no commercial purpose is involved. This might be seen as directed towards activities such as illegal distribution of software via the Internet as a hobby, or on an ideological basis.
Undoubtedly, the implementation of the “enforcement” directive too will be heavily debated, too. There are heavily opposite views, involving strong commercial and technological interests on one hand and principles on citizen’s rights and freedom of information on the other.

System in Transition

Finland has long traditions in copyright. Legal protection (of a sort) was first given to authors as early as in 1829, though the first copyright law was issued in 1927. The current law was issued in 1961, but it has been very substantially changed many times. A new period of changes started in 1991, when several changes were made, including an explicit statement about computer programs as works protected by copyright.

The Finnish copyright system has essentially followed continental (French) tradition in its Nordic form. There was extensive cooperation with other Nordic countries, especially Sweden, and even special innovations were created in this context. In particular, the Nordic countries have a special copyright-like concept that protects catalogues even when they are not “creative” enough to gain copyright proper. This Nordic invention formed a basis for the special arrangement of database protection (the so-called sui generis right) within the EU.

The continental tradition emphasizes author’s right (droit d’auteur) to their creations, as a fundamental human right comparable to (or constituting part of) right to personal property. In the United States, the emphasis has always been different, oriented towards seeing copyright as an economic issue and from the perspective of the society: to promote the progress of technology and economy, a limited exclusive right to one’s works is granted to authors. Moreover, the emphasis has moved from individual authors to publishing houses and other enterprises, i.e. the industry that produces products that need copyright protection.

Although the Nordic and Finnish systems have paid attention to economic aspects, and even contain special arrangements that effectively protect “skill and labor” rather than personal creativity, they have faced the need for a substantial change. Since early 1990s, they have been strongly influenced by several EU directives on copyright, which in turn reflect the needs for protecting the industry inside the EU from US competition. Effectively this has meant that the European system has been adapted to protect “skill and labor” better. For example, the compilation of a large data base might not require any particular creativity in the selection and ordering of the data, but it represents a considerable investment in manpower and other resources, hence needs to be protected against unauthorized copying.

This has meant so many changes that there has hardly been room for any other modifications in the copyright system. Moreover, it has meant that the copyright law, which already was a confusing patchwork, is getting more and more complex, with several layers reflecting different eras and principles.

For example, the proposed changes to Finnish copyright law extend the applicability of obligatory licenses and collective licenses. In effect, they imply that organizations that wish to use copyrighted material may do so in a more streamlined manner, against payment according to available price-lists, without obtaining permissions individually from each author. This is essential in the modern, rapidly changing, digitalized and networked environment, where works are just raw material to be bought and used. But it also means deviation from the author’s right idea, and many authors think that they should always have the final word to say on the exploitation of their works.

Jukka K. Korpela

The author is a freelance author and lecturer and a specialist on Internet matters

More information
jkorpela@cs.tut.fi
http://www.cs.tut.fi/jkorpela