Abstract
Finnish copyright law has been in the spotlight of public debate during the last decade. The Finnreactor and Pirate Bay cases tackled intermediary liability for file-sharing through peer-to-peer technology. While public debate and legal reform arises naturally in common law countries, change in the law requires legislative intervention in Finland. The Finnish “copyleft” has worked hard to formalize the debate in order to influence a series of legislative proposals that have sought to further cement right-holder interests in the Finnish Copyright Act. These proposals extended and expanded the rights of copyright holders in the digital setting. Arguments for strong protection (“copyright”) advance remedies against ISPs that are “effective, proportionate and dissuasive” preventive measures against copyright infringement according to Article 11 of the Enforcement Directive and Article 8 of the INFOSOC Directive. Arguments against strong protection (copyleft) advance narrowly-tailored or no remedies against ISPs relying on Article 9 of the Enforcement Directive, fundamental rights of ISPs and users and the prohibition against imposing an obligation to monitor the internet contrary to Article 15 of the E-Commerce Directive. After 5 years of intense parliamentary debate, new Sections 60a–60g of the Finnish Copyright Act, which strikes a balance between competing fundamental rights on the internet, entered into force in June 2015.
The original version of this chapter was revised. An erratum to this chapter can be found at https://doi.org/10.1007/978-3-319-55030-5_16
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Notes
- 1.
Law 917/2014.
- 2.
Law 607/2015.
- 3.
Law 393/2003.
- 4.
Law 607/2015.
- 5.
Section 25 l of the Copyright Act.
- 6.
Law 458/2002.
- 7.
Government Bill HE 194/2001.
- 8.
Government Bill HE 194/2001 states, in relation to the hosting safe harbor, that the requisite knowledge is specific, i.e. the provision requires knowledge of the infringing material, its location and its clearly illegal nature and the knowledge must be received through a notice as specified in the Act or court order.
- 9.
Information Society Code Ch. 1, Sec. 3.1; 29)
- 10.
Commission Report on E-Commerce Directive at 74–75.
- 11.
Information Society Code Ch. 2–6.
- 12.
Information Society Code Ch. 1 Sec. 3.
- 13.
Section 60c of the Copyright Act, Section § 48a of the Trademark Act, Section 57b of the Patent Act, Section 18a of the Trade Name Act, Section 34 of the Plant Breeder’s Rights Act, Section 35a of the Design Act, Section 36a of the Utility Model Act and Section 37b of the Act on Integrated Circuits.
- 14.
Directive 2004/48/EC.
- 15.
See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal L 167, 22/06/2001 P. 0010–0019. (InfoSoc Directive), Recital 16.
- 16.
As in the Finnreactor and Pirate Bay, which are discussed below.
- 17.
KKO 2010:47.
- 18.
HE 181/2014 at 32.
- 19.
The Pirate Bay case discussed below.
- 20.
Contrary to Section 8 of Chapter 10 of the Penal Code.
- 21.
Contrary to Section 18 of Chapter 17 of the Penal Code.
- 22.
KKO 2010:47 and 48.
- 23.
KKO 2010:47 and 48.
- 24.
(1) a breach of data protection in electronic communications under section349 of this Act; (2) unauthorised use as referred to in Chapter 28(7) of the Criminal Code; (3) endangering data processing as referred to in Chapter 34(9a) of the Criminal Code; (4) possession of a data network offence device as referred to in Chapter 34(9)(b) of the Criminal Code; (5) criminal damage as referred to in Chapter 35(1)(2) of the Criminal Code; (6) secrecy offence as referred to in Chapter 38(1) of the Criminal Code; (7) message interception as referred to in Chapter 38(3) of the Criminal Code; 120 (8) interference with communications as referred to in Chapter 38(5) of the Criminal Code; (9) petty interference with communications as referred to in Chapter 38(7 a) of the Criminal Code; (10) computer break-in as referred to in Chapter 38(8) of the Criminal Code; (11) offence involving an illicit device for accessing protected services as referred to in Chapter 38(8b) of the Criminal Code; or (12) data protection offence as referred to in Chapter 38(9) of the Criminal Code.
- 25.
Section 17. Laki sananvapauden käyttämisestä joukkoviestinnässä 13.6.2003/460.
- 26.
Most criminal offences are under public prosecution, which means that a prosecutor or police will make the request. In practice, the prosecutor or police may not prosecute minor offences. In that case, the injured party may only make a request, if the injury amounts to a criminal offence that could be independently prosecuted as private prosecution (asianomistajarikos). This rule precludes requests based on civil liability.
- 27.
KKO 1999:115.
- 28.
Under the law then in force, the defendant was prosecuted for the copyright offence, which required commercial activity.
- 29.
KKO 1999:115.
- 30.
The amount of compensation is roughly equivalent to the price of three family homes, or 10 annual salaries.
- 31.
KKO 2010:47.
- 32.
KKO 2010:48.
- 33.
4 defendants.
- 34.
5 defendants.
- 35.
2 defendants.
- 36.
According to general doctrines of criminal law, like the principle of legality and in dubio pro reo, an act is punishable only to the extent it was criminal at the time of commission of the alleged offense.
- 37.
KKO 2010:47 at 7.
- 38.
KKO 1999:8.
- 39.
KKO 2003:88.
- 40.
Chapter 5:3 of the Penal Code.
- 41.
Chapter 5:6.1 of the Penal Code.
- 42.
Sharing copies of music between private persons has traditionally been fair use in Finland.
- 43.
Under section 56a § 2 of the Copyright Act, such copying is not punishable as a crime.
- 44.
KKO 2010:47 at 16.
- 45.
KKO 2010:47 at 17 and 18.
- 46.
KKO 2010:47 at 19.
- 47.
The same provision is found in all intellectual property laws, but has been applied only in copyright cases.
- 48.
KKO 2010:47 at 24.
- 49.
KKO 2010:48 and KKO 2010:47 at 27.
- 50.
KKO 2010:47 at 25.
- 51.
KKO 2010:47 at 41.
- 52.
KKO 2010:47 at 34 rejecting earlier case law KKO 1998:91 and KKO 2001:42.
- 53.
KKO 2010:47 and KKO 1989:151, KKO 1999:115 and KKO 2002:101.
- 54.
KKO 2010:47 at 35.
- 55.
The dissenting judge would have ordered higher compensation (20%, 30% and 100% respectively, based on the number of actual copies).
- 56.
KKO 2010:47 at 42.
- 57.
An “injunction to discontinue” is unique to Section 60 c of the Copyright Act and targets intermediaries to copyright infringement. Preliminary injunctions are quite rare in Finland and hardly ever used against others than the main perpetrator, in contested cases or when the law is unsettled. Keskeyttämismääräys. An injunction against direct infringers in absentia or blocking order (estomääräys) refers to a stronger remedy with roots in Article 11 of the Enforcement Directive.
- 58.
IFPI Finland representing EMI Finland Oy Ab, Sony Music Entertainment Finland Oy, Universal Music Oy and Warner Music Finland Oy.
- 59.
Precautionary measures follow a separate summary procedure under Chapter 7:3 of the Code of Procedure. The court has reduced competence to accept evidence or assess questions of substance in summary proceedings. There is no plaintiff or defendant, but an applicant and respondent. The loser pays-principle does not apply to the issue of attorney costs.
- 60.
Elisa is the second largest teleoperator in Finland. IFPI has since filed suit against the other major teleoperators as well.
- 61.
For an in depth comment of the case, see Weckström 2013.
- 62.
The provisions regarding injunctions in the Copyright Act were amended by Parliament after the Supreme Court denied hearing of the IFPI Finland v. Elisa-case on the issuance of an interim preliminary injunction. The amendment entered into force on 1 September 2013. Changes in wording were not intended to change the state of the law (Proposed Bill HE 124/2012 vp at 94 and 119). Sections affected are italicised in the text below. The complete wording of Section 60 c of the Copyright Act before amendment by Law 118/2013 as unofficially translated by Finlex:
(1) In trying a case referred to in section 60b, the court of justice may, upon the request of the author or his representative, order the maintainer of the transmitter, server or other device or any other service provider acting as an intermediary to discontinue, on pain of fine, the making of the allegedly copyright-infringing material available to the public (injunction to discontinue), unless this can be regarded as unreasonable in view of the rights of the person making the material available to the public, the intermediary and the author. (2) Before legal action referred to in section 60b is taken, the court of justice referred to in said section may, upon the request of the author or his representative, issue an injunction to discontinue, if the conditions mentioned in subsection 1 for its issue are met and if it is apparent that the author’s rights would otherwise be seriously prejudiced. The court of justice shall reserve an opportunity to be heard both for the person against whom the injunction is sought and for the person making the allegedly copyright-infringing material available to the public. A service of a notice to the person against whom the injunction is sought may be delivered by posting it or by using fax or electronic mail. The handling of the matter shall otherwise come under the provisions of Chapter 8 of the Code of Judicial Procedure. (3) Upon the request the court may issue an interim injunction to discontinue referred to subsection 2 without hearing the alleged infringer, if deemed necessary for the urgency of the case. The injunction shall remain in force until further notice. After the injunction has been issued, the alleged infringer shall be reserved an opportunity to be heard without delay. After hearing the alleged infringer, the court shall decide without delay whether it retains the injunction in force or cancels it. (4) An injunction to discontinue issued pursuant to this section shall not prejudice the right of a third person to send and receive messages. The injunction to discontinue shall enter into force when the applicant provides the security referred to in [section16 of Chapter 7 of the Enforcement Act (37/1895)] to the execution officer, unless otherwise provided in section 7 of Chapter 7 of the Code of Judicial Procedure. The injunction to discontinue issued by virtue of subsection 2 or 3 of this section shall expire, if a legal action has not been taken within one month from the issuing of the injunction. (5) If the legal action referred to in section 60b is dismissed or ruled inadmissible or the case is discontinued due to that plaintiff has cancelled his legal action or failed to appear in court of justice, the person requesting the injunction to discontinue must recompense the person against whom the injunction is issued, as well as alleged infringer for damage caused by the enforcement of the injunction and for the costs incurring in the matter. The same shall apply when the injunction to discontinue is cancelled by virtue of subsection 3 or expires by virtue of subsection 4. The taking of legal action for the compensation of damages and costs shall be governed by the provisions of section 12 of Chapter 7 of the Code of Judicial Procedure.
- 63.
In subsequent applications against teleoperators DNA Oy and TeliaSonera Finland Oyj, IFPI Finland mentioned that it would specify the domain names and IP addresses in enforcement proceedings, which would indicate that the Execution Officer required that the injunction be specified as a condition for enforcement. It would seem that the District Court viewed the itemisation issue as strictly procedural, which according to standard rules of procedure legitimately shifts detailing issues to enforcement proceedings.
- 64.
HE 235/2010.
- 65.
The draft was circulated for comments (by 1 January 2014) and was delivered to Parliament in the Spring of 2014.
- 66.
This was included in the failed bill of 2010 and the proposal cites the constitutional problems involved. Since the Finnreactor-case, maintaining illegal services in Finland was already criminal, rendering the fourth option without effect, since Finnish authorities do not control domain names outside the .fi domain.
- 67.
Draft Bill at 12.
- 68.
Draft Bill at 13.
- 69.
Draft Bill at 14.
- 70.
Draft bill at 22.
- 71.
Arguments for strong protection (copyright) advance remedies against ISPs that are “effective, proportionate and dissuasive” preventive measures against copyright infringement according to Article 11 of the Enforcement Directive Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004) and Article 8 of the INFOSOC Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22/06/2001 P. 10 – 19).
Arguments against strong protection (copyleft) advance narrowly-tailored or no remedies against ISPs relying on Article 9 of the Enforcement Directive, fundamental rights of ISPs (freedom of enterprise) and users (freedom of expression) and the prohibition against imposing an obligation to monitor the internet contrary to Article 15 of the E-Commerce Directive Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market OJ L 178, 17/07/2000 P. 1 – 16.
- 72.
Draft bill at 24.
- 73.
Draft Bill at 13.
- 74.
For a more detailed account, see the discussion on the Pirate Bay-case above, the 2014 Bill below, and Weckström 2013.
- 75.
Draft Bill at 13 and 21.
- 76.
Draft Bill at 21.
- 77.
For measures under Ch. 7:3 of the Code of Judicial Procedure.
- 78.
The bill proposed that the court assess evidence of the effect of the infringement and compare those effects to the costs of enforcement and the appropriateness of the request for the measure. Draft Bill at 22.
- 79.
It was mentioned elsewhere in the Draft bill that the enforcement costs in the Pirate Bay case amounted to 12,500 euros/order, which the operators paid as part of their general cost of operation. It was noted that the new order could involve greater cost because of the new technology. Draft Bill at 17. It is questionable whether it is necessary to change the statute to prevent recovery of legitimate costs, because of one instance of the operators forfeiting their right to have their cost covered. Nothing in the current statute prevents the (large) operators from doing so in the future. Increased discretion in summary proceedings may be problematic.
- 80.
Precautionary measures follow separate summary procedure under Chapter 7:3 of the Code of Procedure. The court has reduced competence to accept evidence or assess questions of substance in summary proceedings. There is no plaintiff or defendant, but an applicant and respondent. The loser pays-principle, which is standard in civil cases, does not apply to the issue of attorney costs. Instead, the general rule is that the applicant bear the cost of the measure and that the parties bear their own cost for proceedings (attorney fees).
- 81.
Draft Bill at 21.
- 82.
Draft bill at 15.
- 83.
Draft bill at 17.
- 84.
Draft bill at 17.
- 85.
It should be noted that said section refers to the general rules of procedure in the Code of Judicial Procedure and the Enforcement Act, where the general rule of the applicant carrying the cost is cemented. The proposal included two exceptions to the general rules of procedure for precautionary measures; shifting the cost from the applicant to the respondent; and allowing orders on pain of fine without a security.
- 86.
HE 181/2014 at 31.
- 87.
Estomääräys. The term has not been officially translated. The term “blocking order” is not meant to refer to general injunctions.
- 88.
This is in line with a general reform that aims at making Finnish legislation more transparent, understandable and clear. The rigid legal language is replaced with clear language stating criteria for application, which competing interests should be weighed and how. In a way the statutory legal language has been translated to ordinary Finnish without thereby changing the state of the law. The preparatory works are a significant legal source for courts, and they are unlikely to depart from the interpretations offered.
- 89.
There is no English translation of Sections 60a–60g of the Copyright Act. Sections 60d–60f address the procedural concerns previously imbedded in Section 60c, separately. The new Section 60c simply addresses (permanent) injunctions to discontinue. The new Section 60d addresses temporary injunctions to discontinue. The new Section 60e addresses blocking orders and the new Section 60f addresses costs and attorney fees. Section 60 g extends all measures to concern also infringement of related, as in neighboring, rights. It is now clear that different rights and interests are at stake, depending on the procedural setting. What was muddled and unclear, is now clearly stated in the statutory text and preparatory works. We discuss the outcomes of the debate below. For a detailed analysis of the relevant procedural concerns in English, see Weckström 2013.
- 90.
The courts in the Pirate Bay –cases were corrected. They should have balanced competing rights, instead of merely considering the copyright owners’ interest in efficient remedies.
- 91.
HE 181/2014 at 33.
- 92.
HE 181/2014 at 32 and 35.
- 93.
HE 181/2014 at 36.
- 94.
Section 60 e of the Copyright Act.
- 95.
Section 60 e of the Copyright Act.
- 96.
HE 181/2014 at 25.
- 97.
Section 60 c 5, 60 d 4 and 60 e 4.
- 98.
Finnish law has not traditionally recognised declaratory judgments or allowed private causes of action against disinterested parties (intermediary liability). As intellectual property law has created such a cause of action, it is a natural consequence to allow the intermediary to relieve itself from liability. Any other situation would raise a conflict with constitutional rights (namely the right to a fair trial).
- 99.
HE 181/2014 at 32.
- 100.
HE 181/2014 at 37.
- 101.
Section 60e of the Copyright Act.
- 102.
Section 60f of the Copyright Act.
- 103.
HE 181/2014 at 37–38.
- 104.
The Draft bill mentions that the enforcement costs in the Pirate Bay case amounted to 12,500 euros/order, which the operators paid as part of their general cost of operation.
- 105.
HE 181/2014 at 36.
- 106.
HE 181/2014 at 35–36
- 107.
Case C-275/06 Promusicae [2008] ECR I-271.
- 108.
Case C-314/12, UPC Telekabel Wien GMbH v. Constantin Film Verleih, 27.3.2014.
References
Legislation
Communications Market Act 393/2003 (repealed 31.12.2014).
Copyright Act (404/1961).
Directive 2000/31/EC of the European Parliament and of the Council of June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.
E-Commerce Act 458/2002 (repealed 31.12.2014).
Information Society Code (917/2014).
Law 607/2015 changing the Copyright Act.
Bills
HE 181/2014 vp Hallituksen esitys eduskunnalle laiksi tekijänoikeuslain muuttamisesta.
HE 221/2013 vp Hallituksen esitys eduskunnalle tietoyhteiskuntakaareksi sekä laeiksi maankäyttö- ja rakennuslain 161 §:n ja rikoslain 38 luvun 8b §:n muuttamisesta.
HE 124/2012 vp Hallituksen esitys eduskunnalle markkinaoikeutta ja oikeudenkäyntiä markkinaoikeudessa koskevaksi lainsäädännöksi.
HE 235/2010 vp Hallituksen esitys Eduskunnalle laeiksi tekijänoikeuslain 60 a §:n ja sähköisen viestinnän tietosuojalain muuttamisesta (expired).
HE 194/2001 vpHallituksen esitys Eduskunnalle laiksi tietoyhteiskunnan palvelujen tarjoamisesta ja eräiksi siihen liittyviksi laeiksi.
Draft Bills
HE-luonnos_luvaton verkkojakelu. The draft has been circulated for comments (by 17.1.2014) and was set for delivery to Parliament in the Spring of 2014.
Cases
KKO 2010:48.
KKO 2010:47.
KKO 2003:88.
KKO 2002:101.
KKO 2001:42.
KKO 1999:115.
KKO 1999:8.
KKO 1998:91.
KKO 1989:15.
Other
First Report on the Application of Directive 2000/31/EC of the European Parliament and of the Council of June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce); Brussels, 21.11.2003; COM (2003) 702 final (Commission Report on E-Commerce Directive)
Weckström, Katja (2013): preliminary injunctions against intermediaries for trademark and copyright infringement, p. 213–238 in Weckström, Katja (Ed.): governing innovation and expression: new regimes, strategies and techniques, Publications of the Faculty of Law at the University of Turku, Private Law Series A: 132.
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Lindroos, K. (2017). Intermediary Liability for IP Infringement in Finland: CopyRight vs. CopyLeft—A Series of Legislative Proposals and Decade of Debates. In: Dinwoodie, G.B. (eds) Secondary Liability of Internet Service Providers. Ius Comparatum – Global Studies in Comparative Law, vol 25. Springer, Cham. https://doi.org/10.1007/978-3-319-55030-5_8
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