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Friday, 17 October 2014

Finland’s Citizen Copyright Initiative In Doubt: A Sad But Necessary Win For Cross-Border Online Copyright Enforcement?

It was reported in a number of news outlets last week that the Finnish Parliament is close to rejecting the country's first crowdsourced copyright reform initiative. Titled Common Sense For Copyright (“Initiative”), the Initiative called for the expansion of copyright fair use exceptions under Finland’s Copyright Act (404/1961; "Copyright Act") including parody and satire, private copying, network storage, as well as others. The Initiative was reported to have arisen out of an incident in December 2012 when Finnish police raided the home of a nine-year-old girl who had illegally downloaded music on to her computer. Backed by Finnish crowdsourcing NGO Open Ministry (Avoin ministeriö), the Initiative received over 50,000 signatures within six months of its creation, qualifying it for legislative consideration by the Finnish Parliament under a 2012 reform to the Finnish Constitution.

However, the Ministry of Education and Culture (Opetus- ja kulttuuriministeriö), Finland’s governing agency over copyright, released a report calling for the rejection of the Initiative last week as reports cited the Ministry's problems with the Initiative's “internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation.”

End of the road for crowd-
sourced copyright initiative?
Although the Initiative’s consideration by the Finnish parliament is remarkable from a civic engagement and direct democracy standpoint, as well as necessary in spirit to combat overly-punitive enforcement measures, the Initiative’s pending failure is arguably necessary, at least from this U.S. IP attorney's standpoint, to help ensure that qualifying rights holders have effective and economical means to protect their works online, and to ensure that Internet users understand and assist in protecting the unauthorized online dissemination of infringed works.  Understanding why the Initiative’s potential failure is a sad but necessary measure requires examining its proposed reforms.

Network Storage Exception. 
The Initiative’s proposed network fair use storage exception would likely make direct online copyright enforcement more problematic by negating the effectiveness of Finland's notice and takedown procedures. Particularly, the Initiative called for amending third party fair use exceptions under Section 12(2) of the Copyright Act stating that "it is also permitted to have copies made by a third party for the private use of the party ordering the copies," by adding that "Private use also includes saving works in online services managed by the user, but maintained by third parties."

Although such expanded fair use exceptions seem reasonable on their face, they ultimately give Finnish Internet service providers (ISPs) greater means to refuse action on a rights holder's direct copyright infringement notice. 
Finland, like the U.K. under Section 3 of the 2010 Digital Economy Act, and the U.S. under 17 U.S.C. § 512(c) the Digital Millennium Copyright Actprovides ISPs safe harbor from contributory copyright infringement liability under Section 15 and 22 of the Act on Provision of Information Society Services. This allows a qualifying rights holder to submit a notice to a ISP of infringement of their work(s) in online content stored by the ISP, giving the ISP the ability to disable such content in order to qualify for a safe harbor from liability by hosting the infringing content. Although intended to protect ISPs, and considered controversial by many, the notice and takedown procedures provided under these countries' laws give qualifying rights holders effective and relatively inexpensive means to enforce rights in their works.

As anyone who has used notice and takedown measures knows, ISPs may reject a rights holder notice of infringement, despite legal incentives to do so, by claiming that their subscriber's display or storage of the rights holder's work is fair use. By adopting the enhanced fair use storage exception
as proposed by the Initiative, Finnish-based ISPs may reject a qualifying rights holder's takedown notice by simply claiming that they are storing their subscriber's fair use private copies of the rights holder's work(s) without further investigation. As often reported, most ISPs do not have the time or resources to investigate their subscribers' copying of copyright-protected works. Further, many ISPs know that most rights holders, especially foreign rights holders, do not have the resources to seek an injunctive order, much less a prolonged legal action to enforce their rights in their works, either at home or abroad. The combination of these circumstances mean that expanded fair use storage exceptions under the Initiative may ultimately debilitate Finland's notice and takedown system by provided ISPs less incentive to act on rights holders' notices of infringement.

Repeal of Private Copying Restrictions. 
The Initiative also seeks to remove restrictions on fair use copying of works from unauthorized sources. Particularly, the Initiative seeks to eliminate Section 11(5) of the Copyright Act, which restricted reproductions of a copyright protected work, even if considered fair use under the Copyright Act, if the initial version of the work used to make such a reproduction was an infringed version of the work. The removal of Section 11(5)'s restrictions were suggested in the Initiative because “in the future, the making of private copies for one’s own use would be allowed regardless of the quality of the used source” and due to Internet users' inability to assess whether the online content they use for valid reproduction purposes is authorized by such content's owners or right holders.

Although the rationale behind this reform is well-intended, the elimination of Section 11(5) would ultimately hinder the prevention of disseminated unauthorized works. Section 11(5) helps to safeguard against such dissemination by ensuring that Internet users who make valid reproductions of copyright-protected works take reasonable measures to confirm that such works derive from authorized sources.
 I am the first to agree that it is difficult for any Internet user to confirm the legal status of an online work, especially for a foreign-originating work. However, the unauthorized dissemination of works, which causes damages to small and large authors and creators alike, cannot be deterred without greater resilience from those who ultimately use such unauthorized works, namely Internet users themselves. As such, Section 11(5) places a difficult but necessary obligation on Internet users to ensure that they take reasonable precautions in their online activities to help prevent the global dissemination of unauthorized works. 

Parting thoughts. Being an attorney who helps several small rights holders with their chronic domestic and foreign online copyright enforcement needs, I could not help but to think that the Initiative's potential failure is ultimately necessary to protect such rights holders' rights in an ever-changing online landscape. However, I find the Finnish people's direct engagement in attempting to change their country's copyright laws a refreshing and innovative means to create copyright reform in the digital age, and I believe that such direct democratic efforts can help to develop just and equitable copyright laws in the future, both in Finland and the U.S. and in other countries. 

1 comment:

Ville Oksanen said...

Lucas: It's great that you have covered our initiative. Few minor corrections: The initiative hasn't been rejected yet. The committee of culture and education gave its' report, which suggest that but the full parliament on is going to vote on the matter next week. Unfortunately this wrong information is actually hurting our campaigning because people don't realize that there's indeed still hope left. Few high profile MPs have already announced their partial support for the initiative.

Another point: Since recent the EUCJ's decision makes unauthorized sources not permitted for private copying, we are no longer asking for that change.

Yet another point: The Finnish national implementation of service directive requires always takedown notice for liability - However, the courts have refused to apply that law and the Finnish rightholders don't send them at all - they just send either a bill or ask the police investigate the case. (As for result, try googling "winnie the pooh laptop Finland). The initiative was aiming to limit these rights to bring in some balance back to the system.

Yet another: Defining cloud based personal video recorders as private use wouldn't affect any way sharing publicly the content. As soon as a person does something that is transmitting to the public, it's already not permitted. Also the right holders would get their compensation but from the "cassette fee" i.e. fair remuneration.

However, you are indeed right on that matter that this perception has done a great deal of damage to the initiative because the Finnish copyright industry has been very successfully using the "pirate initiative" - label to crush our attempt for real modernisation of the law. The initiative has e.g. similar education & research and parody - exceptions as the U.K reform and right now there's only slim changes that we could get the majority to support them in next week's vote.

Regards, Ville Oksanen

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