The DSM Directive Three Years on: The Current Status of the Implementation in Finland
26 April 2022
Authors: Vilhelm Schröder, Anniina Jaatinen, and Panu Siitonen
In April 2019, after two and a half years of discussion, the European Union adopted the DSM Directive (Directive on copyright and related rights in the Digital Single Market). The DSM Directive was due to be implemented in the EU Member States by 7 June 2021, but the implementation process is still ongoing in many Member States, including Finland. At the time of writing this article, only 10 Member States have implemented the rules established by the new DSM Directive into their national laws.
1 Aims and Key Amendments
In Finland, the implementation of the DSM Directive requires major amendments to the Finnish Copyright Act (404/1961). The Copyright Act is proposed to be amended to better cover situations emerging in the digital environment. The proposed amendments would improve, inter alia, access to works for data mining, teaching, and cultural material. The amendments also aim to improve the exploitation of works by facilitating licensing and ensuring a well-functioning market for copyright.
The implementation includes the following key changes:
- renewal of the limitations to copyright,
- strengthening the status of authors and performing artists in contractual relationships and creating a new related right for press publishers, and
- adjusted liability of content-sharing service providers for copyright infringements.
In addition, the implementation of the Broadcasting Directive (Directive laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes) is combined with the ongoing implementation of the DSM Directive. Initially, several amendments prepared on a national basis were included in the renewal process of the Copyright Act, but as the public consultation of the Government’s draft proposal revealed that many of these issues were of such nature that they could not be taken forward without more in-depth preparation, they will be prepared separately later.
2 Critical Feedback on the First Draft of the Government Proposal
After long preparation by the Finnish Ministry of Education and Culture, the Government’s first draft proposal was made available for public consultation last autumn from 27 September 2021 to 31 October 2021. The first attempt to amend the Copyright Act received extensive feedback, and a total of 230 statements were submitted. In general, the cultural heritage institutions, NGOs, consumers, public authorities, and educational and research organisations were supportive. However, only a few respondents were fully satisfied with the draft proposal, and most of the respondents were quite critical of many of the proposed amendments. The most dissatisfied groups were authors and performing artists (including the trade unions representing them), but also the content industry (publishers, record companies, AV producers, and broadcasting companies), intermediaries (telecommunications companies and technology industry), and employers’ and trade unions. The main reason for dissatisfaction was that the first proposal did not follow the structure of the DSM Directive and was not considered to pursue the objective of the DSM Directive to strengthen the position of authors in particular.
3 Public Hearing and the Second Draft of the Government Proposal
After receiving the statements, the ministry began its refinement work. On 14 February 2022, a public hearing for the stakeholders was held, where the ministry announced that the proposal had been drastically amended. On the basis of an overall assessment made by the ministry after analysing the received positions, some of the proposed amendments were removed from the proposal and transferred to a separate government proposal to be prepared separately later. Amendments that did not relate to nor were required by the Directives to be implemented were deleted. These included amendments due to national considerations such as provisions on educational use other than those required by the DSM Directive and provisions regarding secondary incorporation, modernisation of publishing contracts, and parallel storage of scientific articles. In a nutshell, the main focus of the newly revised draft proposal is to ensure that the interests of right-holders are safeguarded, to remove any national renewals, and to follow the wording, structure, and objectives of the DSM Directive as closely as possible.
4 Key Amendments of the Second Draft of the Government Proposal
Although it was reported in the public hearing in February that no proposal will be presented and no further commenting round will be provided, the Government’s newly revised second draft proposal was made available publicly on 4 March 2022. The revised proposal includes amendments regarding the limitations to copyright; limitations concerning text and data mining, teaching activities, and preservation of cultural heritage and parody are suggested to be introduced or modified. Moreover, regulation of contractual relations comprising provisions concerning appropriate and proportionate remuneration, a transparency obligation, a contract adjustment mechanism, the right of revocation, and rules regarding the online content-sharing services’ liability for copyright infringements are included in the revised draft proposal.
Furthermore, a new related right regarding the protection of press publishers concerning online use is being proposed. On a national basis, the second draft proposal includes extensions to the exclusive rights of actors and dancers. As the Broadcasting Directive, which contains provisions to promote the cross-border transmission and retransmission of TV and radio programmes in the EU internal market, is being implemented at the same time, these amendments are also included in the second draft proposal.
5 Current Status of the Implementation
Finland is slowly approaching the completion of the implementation of the DSM Directive into its national Copyright Act. On 13 April 2022, the Finnish Government presented the Government proposal, based on which the Act Amending the Copyright Act and Section 128 of the Electronic Communications Services Act is intended to enter into force on 1 January 2023. However, on 1 April 2022, the Finnish Council of Regulatory Impact Analysis issued a statement on the second draft of the Government proposal, pointing out that although the second draft proposal provides insight into the main propositions of the proposal and provides a comprehensive analysis of the proposed regulation in the light of various fundamental rights, the impact assessment on the target groups should be further specified and clarified in the proposal. As the Council of Regulatory Impact Analysis found the impact assessment to be deficient, it remains to be seen whether the proposed act becomes applicable in its current form later this year or whether there will be further amendments and delays in the implementation.