MINISTRY OF FINANCE Dr Tuomas Pöysti 27.03.22/1 e-Copyright: The Change and Future of Finnish and European Copyright Regime in the Network Society by Dr Tuomas Pöysti Counsellor, Finnish Ministry of Finance (Chief Counsel on Public Economic, Admistrative and Constitutional Law & Regulatory Policy) Docent (Univ. of Helsinki), Researcher (Univ. Lapland & Helsinki)
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MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/1
e-Copyright:The Change and Future of Finnish and
European Copyright Regime in the Network Society
by
Dr Tuomas PöystiCounsellor, Finnish Ministry of Finance
(Chief Counsel on Public Economic, Admistrative and Constitutional Law & Regulatory Policy)
Docent (Univ. of Helsinki), Researcher (Univ. Lapland & Helsinki)
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/2
Introduction & Excursion
• Scientific background
• Role and Responsibilities in the Ministry of Finance
• Ministry of Finance and Information Society
• Ministry of Finance and Law & Legal Policy
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/3
Purpose• Discuss the change of copyright
– in the digital environment of the network society
• Highlight the situations of copyright law and regime today, and, eventually tomorrow– critical phenomenology
• Change of Copyright carries the message about:– inter-action between technology and law; law and
economy, law and innovation, law and freedom– juridication of new phenomena related to ITC
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/4
Copyright Actualities• WIPO Copyright Treaty of 1996• WIPO Performances and Phonograms Treaty
– entered into force or just about to enter into force
• EC 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
• Implementation of INFOSOC Directive and change of copyright law in Finland (in other European Countries)
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/5
Copyright challenges• Challenge of control in the new media and infrastructures
– The so called digital agenda
• Europeanisation of copyright
• Challenge of constitutional state and constitutional governance
• Challenge of contracting and creating markets related to copyright
• Challenge of efficient markets and efficient competition
– Undue monopolies
• Challenge of legal doctrine - Challenge of understanding
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/6
Challenge of Control• Hypothesis 1: Issues of control play an important role
in the change of copyright law and intellectual property law in general
• Hypothesis 2: Intellectual Property Law / Copyright law moves towards the protection of investment into innovation and information
• Hypthesis 3: There is a turn to infrastructures in the copyright law
• Hypothesis 4: If 1+2 + 3 hold, we must question the role of copyright in information policy and the justification of the regime
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/7
Copyright History and Future ?:
• From printer’s exclusive ’patents’ to modern copyright
• Arrival of the author as the ’mythical’ subject of copyright law
• Focus moves away from the author to publisher (content industry) and to infrastructure
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/8
Copyright• Art. 1 of the Berne Convention: … for the protection of
the rights of authors in their literary and artistic works
• Copyright Act (404/1961), Section 1: A person who has created a literary or artistic work shall have copyright therein, whether it be a fictional or descriptive representation in writing or speech, a musical or dramatic work, a cinematographic work, a photographic work or other work of fine art, a product of architecture, artistic handicraft or industrial art or a work expressed in some other manner.
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/9
Copyright
• exclusive rights to dispose of the work by making copies of it and by making it available to the public, in either the original or an altered form, in translation or adaptation, in another literary or artistic form or by other technical means (Section 2 (1) of Copyright Act)
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/10
Scope of Copyright• Economic rights
– Reproduction right
– Communication to the public
– Distribution right
• Moral rights– name of the author should be stated in the manner required
by proper usage (as required by good practise
– respect of author’s literary and artistic reputation
– non-violabilty of author’s reputation in the alterations of work
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/11
WIPO Copyright Treaty, art.2
• Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/12
Digital agenda• Concern for the effectiveness of copyright in the
digital environment– easiness of copying
– easy transmission and processing of information
– piracy - pirated markets (music only 4,6 billion euros)
– new working methods and business models
– uncertainty about law; genuine uncertainties and scarcity phenomena
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/13
Digital agenda beyond the surface
• control over business models• true and virtual challenges of legal certainty;
• imperatives of technology, convergence, commoditification of symbols and information
• changing transaction costs
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/14
Control of work
• Opinion of Copyright Council 2002:7– Protected arts in the music videos
• utilisation and creation in chain; the value chain
– Extent of exclusive rights; modifications
• Opinion of Copyright Council 2002:6– Photos of the pieces of art in adverts– Assumptions and duties of care
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/15
Privacy, private copying and copyright
• Acts in the private sphere were not interesting in the traditional copyright law
• Private copying as a copyright excemption
• Competing theories of justificiation– privacy justification– balancing theory– law and economics justification
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/16
Problem 1: copying as a default option of infrastructure
• BBS case of Finnish Supreme Court, KKO 1999:115– bulletin board system as a platform of copying
• Peer-to-peer technologies (P2P)– ’’Napster’’– organisation of web-based cyber communities– duties of care and clearance– MP3 case in Swedish Supreme Court (HD)
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/17
Problem 2: Linking• Freedom of information and copyright
• Traditional view: meta-data and indexing outside the copyright law– how to find information?– could get independent protection as catalogue or
other litterary work of arts
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/18
Linking continued
– from meta-data to automatic page/appearance formation
• ’’expressions’’ by WIPO Treaty
• Opinion of the Finnish Copyright Council 2001:8
MINISTRY OF FINANCEDr Tuomas Pöysti
19.04.23/19
Problem 3: Digitalisation of work and modifications
• Ring tones for mobile telephones
• Copyright Council, Opinion 2000:12
• Alteration and moral rights
• Collective Licesing contracts– transaction costs– role of copyright organisations– individual contracting