Ville Oksanen (ville.oksanen/at/effi.org) and Mikko Valimaki (mikko.valimaki/at/effi.org), EFFI
Finnish civil servants have had more influence on the US Digital Millennium Copyright Act and the EU Copyright Directive (EUCD) than most people realise. Jukka Liedes, who wrote the Finnish copyright law proposal, was also the chief drafter behind the WIPO copyright treaties signed in 1996. Mr. Liedes is a high profile lawyer who started his career as the lawyer for Teosto (the Finnish Copyright Collection Society for Artists) and has worked now for some 20 years as a government special advisor on copyright matters. Mr. Liedes is often referred to as Mr. Copyright in Finnish newspapers.
Mr. Liedes is responsible for the Directive’s Article 6.4.4, also known as the “e-commerce safety clause”. Mr. Liedes announced that he was able (with some help from his colleagues) to “save e-commerce” by removing all limitations on copyright holders' exclusive rights in the digital environment. He actually had proposed something similar at WIPO, but at that time, there were also copyright sceptical developing countries among others to push for a more balanced outcome.
In Finland, there had not previously been any public discussion of detailed copyright policy. Collecting societies, institutional users (libraries, museums and the like) and media industries have been the main lobbyists and weak academia (there are no copyright law professors in Finland) has been left to defend the general public. This changed significantly during the implementation of the Directive.
The process began officially with a public hearing on 14 September 2001. A background document, in which the possible changes to the Finnish law were outlined, was prepared for the event. The document was clearly in favour of a very strong copyright regime. For example, criminal sanctions were considered to be the only useful remedy against the circumvention of technical protection measures. In general, the document did not give that much detail on how the changes were planned to be made.
The hearing was open to all interested parties and it turned out to be very popular. Approximately 200 people, including three members from the EFFI board listened to the presentations from the civil servants.
The discussion after the presentation was interesting. The harshest criticism came from Mr. Urho Ilmonen, who was at that time the chief legal counsel of Nokia. He questioned the scope of the law and the role of the Finnish collecting societies in his very strongly worded presentation. Another strong statement came from the Finnish Library association.
The EFFI representatives participated to the discussion although EFFI was not among those invited to talk (EFFI was officially founded just a week before the event). Our comments focused on technical protection measures and especially on their effects on scientific research.
After the first hearing, the public process stalled for a while. A preparatory committee was nominated on 28 November 2001 with Mr. Liedes in the chair and other members from academia and institutional players. The committee did not work in public at this time but some of its information leaked out. EFFI received mainly informal information from academic participants on the committee.
At this point EFFI also selected the right of scientific research as its first lobbying target. It was something that was easy to explain and hard to argue against. The authors of this report published opinions in Helsingin Sanomat (the biggest newspaper in Finland with a circulation over 500,000). It was aimed at the civil servants and the Finnish companies that operate in this field. In the second phase, we wrote an article that was published in practically all university newspapers around Finland. In that article, we strongly encouraged the research community to contact the Ministry of Education and explain why the law would harm their research.
The committee requested eight expert reports, which were supposed to help preparing the most difficult parts of the law. Unfortunately, all of these statements were written without technical input.
The most striking report discussed copy protection technologies and their regulation[1]. This was written by Ms. Katherine Sand from the International Federation of Actors. It contained little substantive material. Having a document full of errors on copying technologies was very unfortunate for everyone involved. Nor did the civil servants have a deep understanding of the underlying technical issues.
The first proposal for the law was published on 2 May 2002. Perhaps the only positive point was a narrow and unclear protection for encryption research. It showed, nevertheless, that our actions could have some effect on the outcome.
A second hearing process started after the proposal was released. The Ministry of Education requested opinions from about 20 parties. The list included all the collecting societies and the biggest institutional users (e.g. The Finnish Broadcast Company).
Electronic Frontier Finland was not invited to participate. In fact, we did not even get any information about the hearings, because our organisation was removed from the mailing list that was set up after the first hearing. The official explanation was first that we were not an “official” association, and then that they did not know who we were. This was puzzling, because at that point we had been in contact with them several times.
We anyway prepared a twelve-page statement, in which we requested a wide range of changes. The biggest problems from our point of view were:
· The proposed law did not allow private copies of protected works;
· The protection for technological protection measures did not have any kind of limitations or provisions against misuse, which would have made it possible to extend copyright indefinitely;
· Criminal sanctions were proposed even if civil remedies would have been enough;
· DVD region codes, CD copy protection and similar systems would have been defined as legally protected access restriction systems.
We managed to get a very short appointment at the Ministry, during which Mr. Jorma Walden (the deputy to Mr. Liedes) agreed to hear our statement but declined to comment or discuss its content at all. Instead, he repeated that authors need protection. The atmosphere during the meeting was extremely chilly and it was very clear that they did not plan to consider our criticism.
We got further confirmation for this. Mr. Liedes gave an interview to IT-Viikko (a Finnish IT news magazine) after we sent out a press release about the problems during the hearing process. He defended their position and claimed that Electronic Frontier Finland was just a group of “hobbyists”, and that there were many parties whose opinion they just could not take into account. He maintained that the Ministry only requests comments from the parties affected by copyright legislation.
Therefore, it was clear that our only
hope was to get Parliament to change the forthcoming final proposal. The only
way to do this was to turn public opinion against the law. We started writing
opinion pieces for newspapers around Finland and had many of them published.
Some of the newspapers did follow-up articles on the topic. We also appeared on
mainstream radio and TV channels a couple of times. Especially EFFI board
members Mikko Välimäki and Kai Puolamäki commented on the law proposal in the
public eye.
The proposal soon reached a mass audience and EFFI started to receive wide support. For example, a group of legal researchers from the University of Turku published very critical report on the law. Another group that was furious was researchers of Asian and African culture. They were worried that in the future it would be very difficult to get material thanks to the European Economic Area first sale doctrine. Finally, DVD enthusiasts voiced concerns over not being able to modify their players, and the inferior region two (Europe) markets compared to US and Asia.
The final proposal was delayed considerably. While the proposal was initially supposed to be presented to the Parliament before the end of August, it was delivered on 10 October 2002 around two months behind schedule. Now we became more optimistic: the Ministry did not update their homepage but insisted that the proposal had come out in August and would be in force before the Directive’s deadline in December. This seemed unlikely!
We started to investigate where the delay came from. As far as we now know, there was an argument between the Ministry of Telecommunication and Transportation (MTT) and the Ministry of Education over the copyright levies on devices (also known as hardware taxes). Nokia and other Finnish IT companies were worried that the Ministry of Education would not have been a neutral party to decide which devices should be taxed and how much. Industry managed to lobby the MTT to defend their position. In the end, MTT won and the right to decide these hardware taxes was removed from the Ministry of Education.
The main parts of the Committee proposal were not changed that much. There were, however, a few quite promising changes.
The proposal now said that private circumvention was legal as long as the user had legal access to the work and could do the circumvention without any help from others. This part looked good at first sight but really did not have any practical meaning and was most likely contrary to the Directive anyway.
A somewhat major win for EFFI was the classification of region codes. The explanatory part of the proposal had a vague definition of technical protection measures and used DVD country codes as an example of a system that could not be regarded as an efficient technical protection measure. Therefore, it would have been legal to make DVD players region-free.
The first plenary hearing of the proposed law at the Parliament was on 16 October 2002. Then the proposal was sent to the Committee of Education and Culture (CEC) after a lively discussion. The discussion gave us some hope, because some of the Members of Parliament (MPs) seemed to be aware of the problems with the law. For example, one MP demanded that the CEC should start an investigation into CD pricing and possible price fixing.
Mrs. Suvi Linden was the chairwoman of the CEC. She was also a former Minister of Culture at the time the preparation of the law was begun. Ville Oksanen from EFFI knew her and her aide also personally from his political past and was able to get a confirmation at an early stage that he would be invited to give expert testimony.
The time before Christmas was very busy due to the forthcoming elections. The government was trying to finish as many laws as possible before the end of the session but the Parliament made clear that it could not handle all of these proposals, especially because there were some serious quality issues. The message started to get out that there might not be enough time for the proposed copyright law either.
At the same time EFFI started a very popular campaign against CD copy protection, which was featured in practically all of the mass media in Finland including TV and radio interviews and debates. EFFI also commented publicly on the ElcomSoft decision in December 2002 and the DeCSS and Eldred decisions in early January 2003. All of these publicity events had a natural connection to the copyright law currently under parliamentary review and we assume this publicity helped our job considerably.
The CEC did not have time to start the hearings before the end of January 2002 and at that point it was clear that there would hardly be enough time to get statements from other committees. One of the most crucial questions was consequently does the law include anything that should be reviewed by the constitutional law committee. If this was the case, the committee would have to work at a really fast pace in order to get the law corrected before the parliamentary elections coming in March
While the constitutional question remained more or less unanswered, the CEC moved on to the expert hearings. At this point, EFFI chairman Mikko Välimäki had secured his participation and thus Electronic Frontier Finland had effectively two chances to present its position.
At this point EFFI got some unexpected help from one of biggest newspapers, which ran a story about copyright payments in childcare centres. The story and its follow-ups framed Teosto (the Finnish Copyright Collection Society for Artists) as an overly greedy organization. At the same time, a lawyer from Teosto kept arguing that the singing of children is a public performance and thus Teosto were entitled to compensation. They were perhaps technically right, but the timing was very unfortunate because family issues were one of the main themes of the election.[2]
Ville Oksanen from EFFI was invited to a coordination meeting with other the parties, who were scheduled to give their testimonies along with Nokia and the country’s three largest Telecom operators Sonera, Elisa Communications and Finnet. The mood was very upbeat and the consensus was that the main goal was to try to block the law. A common position was also formed about several subject matters, although the issues were not very interesting from EFFI’s point of view (like who has to pay cable transmission fees etc.)
EFFI was also informed of the actions of other Finnish scholars, who were scheduled to give their presentations earlier. The message coming from the CEC was clear – the MPs hated the law and just wanted to have reasonable grounds to let it fail. One of their main worries was that the law was so unclear that normal people just could not understand it. This would have been a major problem because the law would at the same time have harsh criminal sanctions.
Ville Oksanen also managed to get some last minute information from the Coalition Party’s secretariat and from the MTT. The Coalition party did not like what was happening since it was in charge of the Ministry of Education and the CEC, but it was ready to accept that the law had to be rewritten if most of the expert witnesses suggested that. They also realised that there was a likelihood that the next version would actually be worse if the government was going to change.
The hearings went very well. The MPs were clearly worried about the poor quality of the proposed law and also had serious issues with the content. Ville Oksanen had borrowed an Apple iPod from Apple Finland for the event. It turned out to be a very effective tool to demonstrate that the current models of content distribution and use are under pressure from technological innovation. The legislation should not prevent consumers benefiting from these possibilities.
At one point, a question about the necessity of the law was raised. The answers were along the line: it is not a problem not to have a law at this time, because only a few other countries have implemented the law so far. Instead, it is more important to get it right.
Meanwhile another delay came from the Constitutional Law Committee, which had started to review the proposal. Some of the expert scholars had connections to EFFI and we were able to confirm they were suggesting that the law proposal had many possible conflicts with the Constitution and human rights treaties.
Mikko Välimäki presented his testimony with a cable television lobby group, consumer agency and law professor on 31 January. The consumer agency supported our cause significantly reporting how consumers had had bad experiences with copy protected CDs which often do not work as consumers expect. Also the law professor pointed out problems in understanding the proposal and possible negative implications for markets.
In his speech, Mikko mainly criticised the logical inconsistencies and hard-to-understand language of the proposal and possible threatening implications of technical protection measures. The session was a clear win for us and MPs pointed most of the questions directly to EFFI. It was a pleasant surprise to learn that some MPs and especially the CEC chair had grasped the big picture and wanted to know what they could do.
Thus, on 31 January, a short official statement was given by chairwoman Linden at the hearing that the committee would let the proposal fall.
Finland recently got a new centre-left government. Adding Digital Rights Management (DRM) extensions to the copyright law is mentioned in the programme of the new government. The new Minister of Education Tanja Karpela has informed us that the process has started again and the next draft should be released before the vacation season. The law should be ready for the Parliament in late August or early September.
The following discussion is based on the content of the final (dismissed) proposal. For now, we have no information on how much the future law proposal will differ from the dismissed one but it is evident that most of what is said here will also apply to the future proposal.
In summary, the proposal included two types of changes to the Finnish Copyright Law:
1. Main changes based on the Copyright Directive, and
2. Other more specific changes (mostly to extend copyright further) which were either independent from the Directive or described as “necessarily following from” the Directive.
This chapter focuses on the first category of changes although some more specific changes that were said to follow from the Directive are also discussed.
The tone of the proposal was definitely in favour of rightsholders at the expense of individual users. In general, the writers of the proposal seemed to have institutional users in mind and did not emphasise that copyright law now affects more and more individual computer users. The traditional balance between authors and users (see the Directive preamble section 31) was not mentioned in the whole 200-page proposal!
Instead, the proposal was very optimistic about DRM: it seemed to say that DRM solves all problems if we simply give all control to rightsholders. From that principle it follows that any vague fair or private use exemption was seen as hostile to DRM. The proposal for example stated at the beginning that “In the current situation, one must consider if there is any need for exceptions to the exclusive rights” and “rights management must be stricter in the digital environment… it might be the case that rightsholders cannot even allow users to exanimate the work”.
Neither did the proposal take into account constitutional rights such as freedom of speech and privacy, stating confidently: “This law proposal introduces no changes to the law that would require the investigation of its constitutionality”.
Obviously, balancing freedom of speech and the private use exemption with exclusive rights is not an easy task. But that is no reason to skip the process.
Finland has among other European countries a limited exemption approach to user rights: just some special exemptions listed in copyright law are supposed to reflect the interest of the general public in copyrighted works. It should be noted that balancing the interests of authors and users has not been mentioned in Finnish copyright law nor did the dismissed final proposal refer to it.
In the US the approach is different: there is an open ended and more flexible fair use right balancing the scope of exclusive rights. It is interesting to note that the Finnish proposal voiced concerns that there probably is no reason to allow these special and narrowly interpreted exemptions to copyright in the future. At the same time the Finnish proposal called for more clarity in the language of the law and a more simplified logical structure. Recently in Australia a committee recommended the simplification of the long list of almost non-understandable exemptions by introducing a US-style open-ended exemption clause.[3]
The proposal intended to change exemptions fundamentally. This was not derived from the Directive but was rather Finland’s own invention, which appeared in the final proposal (no one had anticipated it since it was not in the Committee’s proposal). The proposal essentially required that for any copyright exemption to apply the user must first have obtained a legal copy of the whole work. It would not have been possible to e.g. cite any given work found on the Internet or download a work to a Finnish home computer from the Internet unless the author had been contacted. Internet users simply can not know if works on other homepages are there legally or not.
The exemptions were also narrowed because
of the Directive. Technical protection measures and especially Article 6.4.4
were the main problems. The proposed exemptions can be seen in the following
table:
|
Exemption |
Only with compulsory license |
Protected by “6.4.1” = 50c §1 paragraph |
Valid after “6.4.4” = 50c §4 paragraph |
|
11a § Temporary copies |
No |
No |
No |
|
12 § Private use |
No |
“6.1.2.” |
No |
|
13 § Photocopying |
Yes |
No |
No |
|
13a § Internal publications |
Yes |
No |
No |
|
14 § Educational use (matriculation exam) |
Yes |
Yes |
No |
|
15 § TV and Radio in governmental facilities (hospitals, prisons etc) |
No |
Yes |
No |
|
16§-16d§ Museums, archives |
No |
Yes |
No |
|
17 § Disabled persons |
No |
Yes |
No |
|
18 § Composite works |
Yes |
No |
No |
|
20§ Showing a copy |
No |
No |
No |
|
21§ Public presentation |
No |
No |
No |
|
22§ Quotations |
No |
No |
No |
|
23§ Reuse in newspapers |
No |
No |
No |
|
24§ Concert programmes |
No |
No |
No |
|
25 b § Recording news events |
No |
No |
No |
|
25 c § Repeating public statements |
No |
No |
No |
|
25 d § Document publicity, public security |
No |
Yes
(only public security) |
No |
The proposal’s section on technical protection measures was written quite closely according to the Directive with some notable differences. On the positive side, there was a clear encryption research exemption with a reference to Recital 48. On the negative side, private use of technically protected works was an unclear mess.
The proposal stated vaguely that “CDs may be copy protected … technical protection may restrict their use on devices which do not support the protection technology” but was careful not to take any further position on whether circumvention would be allowed. On DVD region codes the proposal was, surprisingly enough, more clear: “DVD region codes – with the technology used today – cannot be interpreted as a technical protection measure that would be protected according to Article 6 of the Directive”. It seemed that it was acceptable to break DRM for private use at least in some cases.
But immediately after discussing situations where circumvention could be legal the proposal went back on track and remarked that “technical features and markets will progress and it is unclear whether it is justified to allow circumvention for private purposes”. It was especially clear that circumvention was possible only in the case of private use and not with any other exemption (such as citation). The proposal bizarrely continued that “possible problems more often concern institutions rather than individual users”. Also, it claimed that while circumvention for private purposes could be allowed, no external help for circumvention could be used or offered. Finally, following Article 6.4.4 of the Directive, for on-demand content no exemption or circumvention would apply.
One interesting side note concerning implementation of Article 6 was that the proposal claimed it was necessary to limit software reverse engineering. It is a well founded legal principle – also stated in the EU Software Directive from 1991[4] – that reverse engineering (decompilation) of binaries is allowed for interoperability purposes. But the proposal included an amendment to the reverse engineering section of the copyright law stating that reverse engineering is not allowed for any DRM system software.
The proposal would have added three new crimes to Finnish criminal law and four misdemeanours to copyright law:
|
Act |
Location |
Level of Intent |
Punishment |
|
General copyright misdemeanour |
Copyright
law 56a § 1. paragraph |
Should
have known |
Fine,
confiscation |
|
Illegal (private) import of pirated work |
Copyright
law 56a § 2 paragraph |
Should
have known |
Fine,
confiscation |
|
Circumvention |
Copyright
law 56e §1 paragraph |
Should
have known |
Fine,
confiscation |
|
Enabling circumvention |
Copyright
law 56e §2 paragraph |
Should
have known |
Fine,
confiscation |
|
Removing rights management information |
Copyright
law 56f § |
Should
have known |
Fine,
confiscation |
|
General copyright crime (including import) |
Criminal
law 49.2§ |
With
intent |
Fine,
2 years prison, confiscation |
|
Circumvention |
Criminal
law 49.3§ |
With
intent |
Fine,
2 years prison, confiscation |
|
Enabling circumvention |
Criminal
law 49.4§ |
With
intent |
Fine,
2 years prison, confiscation |
|
Removing rights management information |
Criminal
law 49.5§ |
With
intent |
Fine,
2 years prison, confiscation |
The proposal contained some substantial changes to the rules concerning device and media levies. The definition of such a product is:
“Audio or video tape or other such a device, which can
be used to store the work and which is able to make private copies in
substantial amounts” (26 a §)
The fee is based on storage capacity and the government decides on a yearly basis which devices meet the criteria. There are four exemptions to the fee, which are:
· Professional use (radio, TV etc.)
· Devices that are designed to help disabled persons
· Tools used in professional data processing
· Other very important reasons based on the Ministry of Education’s consideration
The proposal also requires that the use of technical protection is a factor that should be taken into account while deciding the fees.
[1] Katherine Sand: Technological Measures.
Strategic Considerations and Conclusions Relevant to the Legislative Work,
Copyright Studies, April 2002, available at http://www.minedu.fi/opm/tekijanoikeus/study4.pdf
[2] A related story on how Finnish Teosto
charges taxi drivers for playing music from CDs and radio went through to
Slashdot in December 2002:
http://slashdot.org/article.pl?sid=02/12/03/216234&mode=thread
[3] Simplification of the Copyright Act 1968,
Part 1, Report on the Simplification of the Copyright Act 1968 Part 1 -
Exceptions to the Exclusive Rights of Copyright Owners, February 1999,
available at http://www.law.gov.au/clr/Simplification%20of%20the%20Copyright%20Act%201968%20-%20Part%201.htm
[4] Council Directive 91/250/EEC of 14 May 1991
on the legal protection of computer programs