Reply of the Finnish ALAI Group

28 June, 2012

Prepared by Mr. Jorma Waldén
Government Counsellor, Ministry of Education and Culture

ALAI-Congress2012 – KYOTO
Questionnaire

Session 1－Developments of New Platforms
1)

How would you define “The Cloud” in your country?
Reply: There are different kinds of cloud services for different purposes available in Finland. A
legal definition of "The Cloud" does not exist.
e.g. cloud services- establishing a server or a centralized IT environment (e.g. for SMEs)- offering storage space and synchronisation services for private persons as well as forbusinesses.

2)

Is exploitation of works, performances, sound recordings and so on generally considered torelate to the Cloud?
Reply: Cloud services offer possibilities to use storage space for different purposes. Copyrightprotected subject matter can easily be stored and be available for a personal use everywhere.
Services may also allow a person to extend his personal sphere to relatives and friends. At somepoint there may be a question whether private sphere has turned a public sphere.
A phenomenon which has become more common in Finland within the last few years is the
emergence of Internet video recording services. These services are offered bytelecommunications companies or other service providers. Services may be based on different
concepts or techniques. At least some of them may be characterized as "cloud type" services.
As to these services a major copyright question is: Are these services considered private copying,or should they be licensed by the right holders of the broadcast material?

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3)

Are there already commercial platforms established specifically designated for the Cloud or tosome extent related to Cloud uses? Can you foresee such new platforms to be established in thenear future?
Reply: Yes, there are some Finnish commercial platforms for SMEs. International services, such
as iCloud, Windows Live Skydrive, MobileMe etc., are available also in Finland.
New platforms, also domestic ones, will definitely be established in the future. EspeciallyInternet video recording services will become more and more popular.

4)

How would you evaluate the Cloud’s importance to copyright for the next few years to come?
Reply: There are indications in overall networking that all kinds of cloud services will grow andexpand in the future. Also the private sphere seems to expand.
This development must be monitored from the copyright point of view.

Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud”
Business?
1)

Is there any case law to be found in your country and/or examples of (good) practices
concerning:
1.1) the right of making available to the public with reference to “Cloud” storage, retrieval anddissemination?
Reply: No, there is no case law yet. A preliminary investigation in a case against an Internet
video recording service provider has been finished and a consideration of charges is still pending.
1.2) cloud providers that may be relevant to determine liability for the making available ofunauthorized content in the cloud environment?
Reply: No, there is no case law on that.

2)

Is there case law on the technological protection measures and Electronic rights management
information in the “Cloud” environment?
Reply: No, there is no case law on that.

3)

How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to “cloud”
developments?
Reply: The provisions of the WCT and the WPPT set cornerstones to the operations in theinformation networks, and also in "clouds".
The agreed statement concerning Article 1(4) of the WCT states that "the reproduction right...
fully apply in the digital environment, in particular to the use of works in digital form. It is2understood that the storage of a protected work in digital form in an electronic medium
constitutes a reproduction within the meaning of Article 9 of the Berne Convention."
Further, the right of communication to the public in Article 8 of the WCT, as well as the right ofmaking available of fixed performances in Article 10 of the WPPT, retain on demand activities in
the Internet within the exclusive competence of authors, performers and producers ofphonograms.

Session 4– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”:
Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies are classified as“Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service” (IaaS).
Under the heading of “New Business Models for effective Protection of Copyright and Related rights
in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are of minor importance, since
they generally do not involve the use of copyrighted works of literature and the arts (issues of
copyright in software are not discussed at this congress).

Note: This subsection focuses on successful business models of authors and rightholders who market
their copyrighted subject matter in the cloud either themselves or via a service provider (such as, e.g.
Apple’s “iTunes in the Cloud“), presumably by employing digital rights management (DRM) andperhaps also technical protection measures (TPM).
1)

In your country, what types of cloud services are offered and/or made available by authors
and rightholders offering their copyrighted content?
Reply: The understanding is that there are no such lawful services available in Finland at the
moment. (The same reply to questions 2-6, and 8.)2)What kinds of works are being offered in this way (e.g., musical works, literary works,
photographic works, audiovisual works, performances etc.)?

3)

What rights do rightholders usually transfer to the providers of cloud services?

4)

What uses of copyrighted material are the users of such cloud services permitted?

5)

Can you give any figures regarding both royalty rates and total revenue authors andrightholders receive when their works are being offered in the cloud?

6)

What kind of TPM and DRM is used by these services?

7)

Under the legislation of your country, to what extent are TPM protected against theirunauthorized circumvention?
Reply: The provisions of the Copyright Act fulfil the requirements of Article 6 of theInformation Society Directive 2001/29/EC.

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Copyright Act (404/1961)
Section 50a Prohibition to circumvent a technological measure (821/2005)
(1)

(2)

(3)

(4)

An effective technological measure protecting a work protected under this Act, which
has been installed as protection for the work by the author or some other person withthe author's permission in making the work available to the public, shall not be
circumvented.
An effective technological measure means technology, a device or a component which,in the normal course of its operation, is designed to prevent or restrict acts in respectof the work without the author's or other rightholder's authorisation and by means ofwhich the protection objective is achieved.
The provisions of subsection 1 shall not apply if the technological measure iscircumvented in course of research or education relating to encryptology or if aperson who has lawfully obtained the work circumvents the technological measure inorder to be able to listen to or view the work. A work in which the technologicalmeasure has been circumvented for the purposes of listening or viewing shall not be
reproduced.
The provisions of subsec7ons 1−3 shall not apply to a technological measureprotecting a computer program.

According to Section 50b it is also prohibited to produce and distribute devices forcircumventing technological measures.

Section 56e Violation of a technological measure (821/2005)
Anyone who wilfully or out of gross negligence infringes
1. the prohibition to circumvent a technological measure, as provided in section 50a, or
2. the prohibition to produce or distribute devices for circumventing technological measures,as provided in section 50b,shall be sentenced, unless the act is punishable as a circumvention of a technologicalmeasure under section 3 of Chapter 49 of the Penal Code or as a offence of a device forcircumventing a measure under section 4 of the Chapter, to a fine for a violation of atechnological measure.
8)

Is unauthorized circumvention of TPM a practical problem for those offering their content in
the cloud?

5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors and rightholders,
who build upon someone else’s copyrighted material and who – successfully or not – try not to be
subject to copyright liability. Examples are services that make use of the private copying exception(such as, e.g., personalized internet video-recorders) or which strive to benefit from an exception tolegal liability as an Internet Service Provider (such as, e.g., under the EU e-Commerce Directive). In
addition, strategies of authors who market their copyrighted works outside of copyright (such as, e.g.,under an open content or Creative Commons (CC) licence) can also be regarded as “copyrightavoiding” business models (although technically, they are based on copyright).

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5.1 – Private copying in the Cloud1)

In your country, are there services – and if so, what kind of services are there - that offer its
users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”), platforms withgeneral public access (such as, e.g., FlickR) and mixed-forms (such as, e.g. Facebook) but alsoso-called internet-video recorders and possible other forms of private storage services.
Reply: Yes, there are such services as described above, including personalized internet videorecorders, available in Finland. (See reply to question 2 of session 1)

2)

In legal terms, to what extent do the operators of such services benefit from its user’s private
copying exception? Are there any other exceptions under copyright law?
(note that general exceptions of legal liability are discussed under 5.2).
Reply: The question whether private copying exception could or should be applied to internet
video recorder services, including other copyright matters related to these services are
currently being considered in the state administration.

5.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability or
limited interpretations of the “making available” right1)

To what extent do the operators of cloud services benefit from a narrow interpretation of the
making available (or communication to the public, or public performance) right?
Reply: The situation shall be assessed by taking into consideration the role and activities ofthe operator. If the operator is not the one who communicates or makes the copyrightprotected material available to the public, i.e. the originator of the process of communication,
the operator cannot be liable for it.
Furthermore, according to Recital 27 of the Information Society Directive of the European
Union (2001/29/EC), the mere provision of physical facilities for enabling or making acommunication does not in itself amount to communication within the meaning of the
Directive.

2)

According to the law in your country, what is the legal status (primary or secondary liability contributory infringement or vicarious liability; aiding and abetting, other liability such as an
inducer, “Störer”) of the provider of cloud services with regard to copyright infringing
content uploaded by its users?
Reply: If the service provider does not benefit from the exemption of liability (describedunder the next question) the service provider may be liable e.g. for aiding and abetting.

3)

In your country, do cloud service providers benefit from an exception to liability (such as, e.g.,under the EU e-Commerce Directive), and if so, to what extent (e.g., total exemption fromliability or exemption only from duty to pay damages)?
5Reply: Finland is, as a Member State of the European Union, bound to Directive on electroniccommerce (2000/31/EC) and its provisions on liability of intermediary service providers. The
Directive has been nationally implemented by law nr. 458/2002 (Act on Provision ofInformation Society Services).
Please cite to and briefly describe statutory provisions and relevant case law.
Act on Provision of Information Society Services (458/2002)
Section 15 Exemption from liability in hosting services
When an information society service is provided that consists of the storage of
information provided by a recipient (content producer) of the service, the service
provider is not liable for the information stored or transmitted at the request of arecipient of the service if he/she acts expeditiously to disable access to theinformation stored:
1) upon obtaining knowledge of the order concerning it by a court or if it concerns
violation of copyright or neighbouring right upon obtaining the notificationreferred to in Section 22;2) upon otherwise obtaining actual knowledge of the fact that the stored information
is clearly contrary to Section 8 of Chapter 11 or Section 18 of Chapter 17 of thePenal Code (39/1889).
The provisions in paragraph 1 shall not apply if the content producer is acting under
the authority or the control of the service provider.
There is no case law on the application of this provision to cloud services.

4)

Also according to the law in your country, what duty of care is owed by cloud service
providers to monitor and eventually remove copyright infringing content?
Reply: There is no duty for the service provider to monitor.
There is1) a duty to disable access to the infringing content (Section 16: "On application by a publicprosecutor or a person in charge of inquiries or on application by a party whose right thematter concerns, a court may order the service provider, referred to in Section 15, to disable
access to the information stored by him/her if the information is clearly such that keeping its
content available to the public or its transmission is prescribed punishable or as a basis forcivil liability. - - -")2) a duty to prevent access to material infringing copyright or neighbouring right (Notification
procedure, Section 20: " A holder of copyright or his/her representative may request theservice provider referred to in Section 15 to prevent access to material infringing copyright asprescribed in this Section and in Sections 22-24. The same applies to a holder of neighbouring
right and his/her representative if it concerns material infringing this right. - - -")6

5)

What evidence must a rightholder present in order to have infringing content removed?
Reply:
1) An order to disable access to the infringing content (Section 16): According to thelegislative history, an order may be given if the infringement of copyright is manifest.
2) Notice and take-down: According to Section 22, the notification must be made in writingor electronically so that the content of the notification cannot be unilaterally altered and thatit remains available to the parties.
The notification must include: 1) the name and contact information of the notifying party; 2)an itemisation of the material, for which prevention of access is requested, and details of thelocation of the material; 3) confirmation by the notifying party that the material which therequest concerns is, in his/her sincere opinion, illegally accessible in the communication
network; 4) information concerning the fact that the notifying party has in vain submitted
his/her request to the content producer or that the content producer could not be identified;5) confirmation by the notifying party that he/she is the holder of copyright or neighbouring
right or entitled to act on behalf of the holder of the right; 6) signature by the notifying party.

6)

In your country, are there any contracts that have been concluded between cloud service
providers and rightholders concerning the use of copyrighted material by the users of thecloud services?
Reply: There is no information available on such contracts.

7)

In your country, what copyright-avoiding cloud services are operating successfully, and what
services that sought to be avoiding copyright have been banned and eventually shut down?
Reply: No services have so far been banned or shut down.

8)

In your country, are there any legislative changes under discussion as regards the liability ofservice providers who provide for cloud services? In particular, do you think that liability ofservice providers will be reduced or, rather, increased?
Reply: Such legislative changes are not under discussion in Finland.
However, as regards Internet video recording services and their operators, the question
whether private copying exception could or should be applied to internet video recorderservices, including other copyright matters related to these services are currently being
considered in the state administration.
In the context of the European Union and the European Digital Single Market, the evaluationand improvement of the E-commerce Directive is one of the five priorities.
According to the Communication of the European Commission – "A coherent framework forbuilding trust in the Digital Single Market for e-commerce and online services" COM(2011)
942 final: "It is, however, necessary to improve the implementation of the Directive (inparticular through better administrative cooperation with the Member States and an in-depth
evaluation of the implementation of the Directive), provide clarification, for example
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concerning the liability of intermediary internet providers, and take the additional measuresneeded to achieve the Directive's full potential, as identified in the current action plan."
9)

Do you see any progress regarding filtering technology?
Reply: No opinion on that.

5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”
1)

In your country, is there a noticeable use of “copyright-avoiding” business models, such as
Creative Commons (CC) or comparable open content licenses by rightholders with respect tocloud-based exploitations of works?
Reply: The use of CC licenses has become more common. There is no empirical data available
on their use in Finland.

2)

If so, in what areas (music, literature, audiovisual works, scientific works etc.) are suchlicenses most often used?
Reply: There are no studies on this matter. In the scientific field CC or open content licenses
are highly promoted.
In literature and music such licenses are used as well.

3)

Are there any figures available as to how the authors of such works generate income fromsuch cloud-based exploitations, and how much?
Reply: There is no such information available.

4)

Also in your country, what legal obstacles are authors faced with when making use of open
content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award damages forunauthorized commercial use of works that have been made available only for noncommercial use; collecting societies refusing to represent authors who want to market someof their works under a CC-licence; the exclusion of CC-authors from receiving remuneration
under a private copying regime etc.
Reply: There is no specific information available on this.
According to the strong principle on "freedom of contract", authors and other right holders
may use their economic rights as they wish, e.g. by using CC- and open content licenses.
Moral rights of authors and performing artists may be waived by them only in regard of use
limited in character and extent (Section 3(3) of the Copyright Act).
The freedom of contract has been limited only in regard of computer software and databases.
These provisions in Sections 25j, 25k and 49 are for the benefit of the user of a software or a
database, and they are based on the European Union Directive on the legal protection ofcomputer programs 91/250/EEC and Directive on the legal protection of databases 96/9/EC.
8Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment
1)

Does your country have specific private international law rules for copyright in particular and forintellectual property in general or are there general rules of private international law that apply
in these circumstances? In particular do your country's rules of judicial competence (personal
jurisdiction) make it possible to sue a foreign intermediary who makes it possible forinfringements to occur or to impact in the forum? Which law applies in such instances? Would
the law applicable to the primary infringement apply? Would the law of the intermediary's
residence or place of business apply?
Reply: No, there are no specific rules.
In the European level, the same questions and possible problems have been raised into
discussion. The European Union wide solutions are needed.
The elementary question is whether the international enforcement of rights is efficient. If thepotential infringer is operating from abroad and has no office in Finland it is almost impossible
to sue him in Finland.
According to Section 5 of the Penal Code, Finnish law applies to an offence committed outside of
Finland that has been directed at a Finnish citizen, a Finnish corporation, foundation or otherlegal entity, or a foreigner permanently resident in Finland if, under Finnish law, the act may bepunishable by imprisonment for more than six months.

2)

Does your national collective rights management organisation grant multi-territorial licences
and are there cloud-specific licence models when it comes to collective licensing? If so, does thisinclude rules on cross-border contracts (including jurisdiction and choice of law aspects)?
Reply: According to the information received from GRAMEX (Copyright Society of Performing
Artists and Phonogram Producers in Finland) cross-border licenses are granted in the following
cases:
1) simulcasting (simultaneous distribution of a broadcast in the Internet)
2) webcasting ("Internet-radio")
3) Catch Up-/On Demand -services by broadcasting organisations
The licensing is based on certain framework agreements of IFPI. In this context, the pricing andlegislation of the destination country are applied.
As to the licensing of background music services (e.g. from Finland to restaurants and shops inother countries, at the moment in 16 countries), it is based on agreements between collective
organisations in different countries. The pricing and legislation of the destination country areapplied.
The domicile of the service provider does not play any role. E.g. the use of a Swedish internet
radio in United Kingdom may be licensed by GRAMEX.
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The licensing of cloud services is up to the record companies themselves.

According to the information received from the Finnish Composers' Copyright Society TEOSTO
the use of international services, such as Spotify, Sony Music Unlimited, Rara.com and Microsoft
Zune VOD are licensed by TEOSTO in Finland.
TEOSTO does not grant multi-territorial licences yet.

Please send your replies by email to Mr Tomoki Ishiara at ishiara@translan.com by
30 June 201210