The upcoming modernisation of the Finnish Copyright Act is the most significant change for copyright legislation in Finland in the last two decades. The reformed Act enters into force on 3 April 2023, and it will implement the EU Directive on copyright in the digital single market (DSM Directive) in Finland.
The purpose of the reform is to improve the use of digital technologies and the cross-border use of and access to works in addition to ensuring a well-functioning copyright market. The reform will have a significant impact for many industries.
New exceptions to copyright in digital environments
After the reform enters into force, text and data mining will largely apply the right to read is the right to mine principle. This allows the reproduction of works for the purposes of both commercial and scientific research related text and data mining. However, copyright holders may reserve their right to prohibit the use of their works for purposes other than scientific research. This prohibition must be explicit and appropriate, and it can be, for example, published on the copyright holder’s website or included in the service’s general terms or metadata.
These new copyright exceptions could be a significant enabler for machine learning. Their applicability for machine learning purposes is unclear, however, as noted in our recent blog posts on the topic (in Finnish).
The right to appropriate and proportionate remuneration for exploited works has been added to the reformed Copyright Act in order to protect authors and performing artists. Freedom of contract remains the guiding principle, and the law does not determine the level of appropriate remuneration. The reform however supplements the criteria for assessing the fairness of remuneration. The new criteria to be taken into account are the modes and the extent of exploitation, the economic value of the work and the basis for remuneration, and the author’s or performer’s contribution to the overall work.
In addition, authors have the right to obtain information on the exploitation of their works. The amendment increases the transparency of the commercial value of works by giving authors the right to obtain, at least once a year, an account of the exploitation of their work if the authors’ contractual counterparts or their successors have received revenue from the exploitation of the work or if the remuneration paid to the author depends on the extent to which their work is exploited. The obligation to provide this account is not absolute and the scope of this transparency obligation is influenced by the specificities and practices of the relevant sector.
Moreover, authors and performing artists now have the right to revoke the exclusive rights they have assigned if the relevant work has not been exploited within a reasonable period of time after the conclusion of the transfer and provided that the work is not exploited within six months of the author’s request to have the transfer revoked. This prevents authors’ contractual counterparts from buying exclusive rights to works with the intention of preventing market entry.
The related rights of press publication publishers have been added to the reformed Copyright Act as a new exclusive right. This provision enables press publication publishers to receive remuneration from service providers for the digital and online exploitation of press publications.
On the European level, this new related right was one of the most hotly lobbied and debated items. The right opens an avenue for a new licensing regime benefiting press publication publishers.
Online content-sharing service providers are now liable for copyright infringing content
A new chapter concerning online content-sharing service providers has been added to the reformed Copyright Act. Pursuant to the new provisions, these service providers are now responsible for the communication to the public of works stored in their service and must therefore obtain an authorisation from the appropriate rights holders for the use of copyright-protected material uploaded by their users.
The new regulation aims to promote a functioning copyright marketplace and to encourage the creation and distribution of creative content. However, users who upload material for the purposes of generating income, such as successful YouTubers, must obtain authorisation for the exploitation of any copyright-protected works directly from the appropriate rights holders.
With the advent of the reformed Copyright Act, online content-sharing service providers are liable for the above unless they can demonstrate compliance with certain operatory obligations set out in the amended Act. However, lawmakers have emphasised that compliance with these obligations must not restrict the freedom of expression and the lawful use of works.
Parody use and other miscellaneous amendments
In addition to the above-mentioned amendments, the reformed Copyright Act will enshrine the right to use works for the purposes of parody, for example as part of a meme, in addition to allowing certain cultural heritage institutions, such as archives, libraries, and museums, to use out-of-commerce works. The reformed Copyright Act will also allow the retransmission of television and radio programmes in accordance with the Directive on Cross-border Online Distribution of Television and Radio Programmes.
A more robust collective licensing system
Collective licences will remain the primary way to exploit collectively managed works. However, the reform clarifies the criteria for when an organisation is to be considered a collective management organisation representing authors in a certain field. The reform also increases the notification obligations of collective management organisations in relation to the authors and harmonises provisions so that the author’s right to compensation and the related claim period are not unreasonably short.
Further amendments expected to the Copyright Act
The changes introduced in the reformed Copyright Act are extensive and far-reaching. As such, the Parliament mandated in its decision that the Government and the Finnish Ministry of Education and Culture monitor the impact of the reform.
Furthermore, the comprehensive reform of the Copyright Act is still a work in progress, and preparations for the second wave of amendments continue. This second wave is intended to address nationally identified reform needs beyond the changes required by the DSM Directive, such as e.g. the use of works in teaching and research activities, and radio and television broadcasts.
If you have any questions about the reform or what implications it may have for your business, please contact the undersigned or your regular Borenius contact.