The Finnish Parliament passed the amendments to the Copyright Act during a plenary session on Monday 27 February. The bill still has to be approved by the President of the Republic. The partly updated Copyright Act now takes the interests and rights of the authors and users of works into account in a more balanced way than before.
”A functional Copyright Act creates the operating conditions required for the creative industry’s success. The industry has long worked for this important legislative amendment. It’s great that we finally saw it through,” remarks CEO of Kopiosto Valtteri Niiranen.
The partial update to the Copyright Act is based on the EU Directive on Copyright in the Digital Single Market and the Online Broadcasting Directive, which are now being incorporated into Finnish legislation. The purpose of these directives is to improve the position of creative professionals, update legislation to correspond to the requirements of a modern, digital society and unify the laws of the EU Member States.
The update to legislation has been a long process. The work on the directives began in Brussels in 2015, and the preparatory work was characterised by strong lobbying by the various parties. The preparation of the Finnish Copyright Act started in 2019. After many hearings and a thorough round of statements, a government proposal was submitted shortly before Easter last year, and a supplementary government proposal was submitted in December.
“However, these amendments arising from EU directives don’t mean that our work is done. During the next government term, the Copyright Act must be updated further, taking national needs into account,” Niiranen points out.
Next, we will go over the most significant changes to the updated Copyright Act from the perspective of creative professionals.
Retransmission of Finnish TV channels will become clearer
What is notable in the updated Copyright Act with regard to the authors of audiovisual works is that the Act will clarify the retransmission of Finnish TV channels. Retransmission refers to a situation in which someone other than the original broadcasting company distributes the original TV broadcast simultaneously and unchanged via a cable television network, for example.
Retransmission is copyright protected, which is why the principle is that permission is needed for it from the authors of the TV programmes. The authors are also entitled to copyright remunerations for the retransmission of their works. Remunerations are earned according to the usage of the works, meaning that if the TV programme is retransmitted years later, the author will still receive the share of remunerations owed to them.
On a technical level, a clarifying entry in line with the EU’s Online Broadcasting Directive was accepted into the section of the Copyright Act concerning extended collective licence. According to this entry, the way in which the party carrying out the retransmission, i.e. the cable operator, receives the programme signal from the organisation carrying out transmission activities, i.e. the TV company, is irrelevant with regard to the copyright evaluation of the activities.
This specification is good and very welcome. It means that the signal’s reception method cannot be evoked when evaluating whether the cable operator’s activities constitute copyright protected retransmission.
In addition to the use of works under copyright licences, the use of YouTube will be allowed in education
The updated Copyright Act will facilitate the use of works in education. If no licence is available for the use of a particular work, the new limitation set out in the Copyright Act allows the work to be used for the purpose of illustration for teaching in the future.
Educational institutions may primarily continue to use works in accordance with the copyright licences procured for the educational institutions. However, the new limitation also allows teachers to use works for which a licence is not at all or not easily available for teaching purposes. Examples of such works include YouTube and promotional videos, which may in future be used for illustration of teaching.
There are several licences available for education that also allow works to be copied and used in teaching beyond the scope of illustration. Such licences include Kopiosto’s copying licence and licence for the use of TV programmes.
The use of online content must be agreed upon with newspaper and magazine publishers
A new related right concerning the publishers of newspaper and magazine publications was added to the Copyright Act. It provides newspaper and magazine publishers with the exclusive right to decide on the reproduction of their publications or parts thereof and their distribution to the public for profit.
This new related right improves the protection of newspaper and magazine publishers when their news are utilised by media monitoring services and news aggregators, for example. For these services, the use of newspaper and magazine content is a significant source of income and part of their business model. The authors of works included in newspaper and magazine publications, such as journalists or photographers, are also entitled to a fair share of the income obtained by the newspaper or magazine publisher based on their new exclusive right.
The new related right will not limit private use, and it will also not be applied to the sharing of links to news articles. The exclusive right also excludes individual words or very short excerpts. However, the headlines of newspaper and magazine articles are considered to be essential and commercially significant parts of newspaper and magazine publications, regardless of length.
This related right of newspaper and magazine publishers is valid for two years from the end of the year during which the newspaper or magazine issue in question was published.
Social media giants are now responsible for obtaining the licences required for sharing works on their platforms
In the future, many social media services, such as YouTube, Facebook and Instagram, must obtain a licence when private individuals share copyright protected content made by others in the service.
This requirement applies to situations in which content is shared for non-commercial purposes and in ways other than by sharing a link. The shared content may be photographs, newspaper or magazine articles, poems, works of visual art, lyrics and sheet music authored by others, for example.
If the social media service has not obtained the necessary licences, it must make the work unavailable upon receiving a sufficiently reasoned request.
This amendment will improve the ability of creative professionals to earn income. Additionally, it protects the position of citizens by placing the responsibility for obtaining licences for the use of works on the service provider. This change also does not prevent the use of works under limitations of copyright, such as the right of quotation or the parody exception.
Works may be used in text and data mining
A new provision allowing works to be used in text and data mining was added to the Copyright Act. Mining may only make use of legally accessible works, i.e. works that are available with permission and openly accessible online, for example.
However, this limitation is not absolute; the author or publisher of the work may withhold the right to use their work in text and data mining if they wish. This can be done through the work’s terms of use, for example. However, the use of works in text mining carried out for the purpose of scientific or academic research may not be prevented or limited with an agreement.
It should be noted that copies made of works may only be retained for text and data mining purposes, and it is prohibited to make them available to the public, for example. Nevertheless, research organisations and cultural heritage institutions are allowed to keep copies of works for the purpose of scientific and academic research and later verification of research results.
New usage of works removed from commercial distribution in archives, museums and libraries
A new provision on extended collective licence was added to the Copyright Act. It facilitates the use of works removed from commercial distribution in archives, museums and libraries.
Cultural heritage institutions may agree upon the use of such works with the copyright organisation representing the authors and publishers. If there is no organisation representing the authors and publishers of certain types of works, such works may be used according to the new limitation set out in the Copyright Act.
Cultural heritage institutions are not allowed to use works for commercial gain. The author may forbid the use of their work under an extended collective licence or the limitation set out in the Copyright Act.
The use of works is now also allowed for caricature and pastiche
The parody exception in the Copyright Act allows published works to be used not only for the purpose of parody but also in the context of caricature and pastiche.
This is based on the idea of protecting freedom of speech and creativity in the digital era. The use of works for parody has also previously been allowed under the provision on free adaptation.
The rights of artists performing in visual recordings were expanded
The scope of the rights of performing artists previously varied depending on whether the artists are performing in an audio or visual recording. For example, the rights of actors performing in visual recordings were more succinct than those of musicians and singers performing in audio recordings.
Thanks to the amendments to the Copyright Act, artists performing in visual recordings now have the same rights as artists performing in audio recordings.
The position of authors was improved in the transfer of rights
The position of authors in negotiations and agreements was reinforced. The updated Copyright Act includes a new provision stating that authors are entitled to fair and proportionate remuneration when they transfer the exclusive rights to their work or grant an exclusive licence to use their work.
The original author also has the right to receive regular accounts of the use of their work from the user. The account must be provided if the party making use of the work has received income from the use of the work and if the remuneration to be paid to the author depends on the extent of the use of the work.
The update also improved the author’s right to withdraw the transfer of the rights. The author has the right to withdraw the transfer if the transferee has not used the work within a reasonable time and does not use the work within six months despite the author’s request. However, the author is not obligated to return the remuneration they have received on account of withdrawing the transfer of the rights.