An orphan work on copyright

Made a major scanning and now I have important news for this blog’s Finnish readers: here’s a pdf-copy of T.M. Kivimäki’s seminal treatise on copyright. I have no idea who is the book’s current copyright holder. It was published in 1948 and has been out of print (and out from most libraries) for ages. However, I recommend everyone to take a look at the contents of the book. The main principles of copyright are clearly explained. Kivimäki himself thought that the essence of copyright is actually the inalienable personal side (“author’s rights”), not the economic components. A point worth thinking about when the so-called copyright industry keeps on claiming property-like ownership to human culture.

Class action to Finland, now!

Helsingin Sanomat, the leading newspaper here, published my rant on class action today as the top opinion piece. There is a conservative proposal in the parliament titled “An act on class action”. In reality, the act would give Finnish consumer ombudsman the right to file a class action in a very restricted number of cases under his area of expertise. The law does not apply to e.g. environmental or health related damages. Most importantly, citizens have no right to file a class action suit themselves.

The proposal is a joke that belongs to socialist times when the assumption was our state knows better. We don’t need civil rights nor consumer groups because we have official ombudsmen for all these tasks. The problem is the system ceased to work years ago. Obviously those who prepare these laws just didn’t notice – perhaps because they were creating this socialist system in the first place. When companies are global the role of national authorities is comparable to a “minor harm”, another easy negotiation partner. When things fuck up, the authorities in a consensus-oriented place like Finland are the last instance to consider anything like a suit.

In my opinion, all Finnish citizens should have a general right to file class action suits in any type of case the citizens see fit with the help of any legal adviser they choose.

A sensible proposition for IP reform

In the UK, the much-hyped Gowers review of Intellectual Property has been published. In a quick review, I spotted two highlights:

  • In pages 48-57 the report puts forth the most profound critique of copyright term extensions so far
  • In pages 66-68 the report recommends “transformative use” as a new exception to EU copyright directive

The report also includes expected recommendations for private copying, orphan works etc. The report sees patent regime in more positive light compared to copyright, although there is a critique of software patents in place. Overall, the report is a required reading for anyone interested in the problems of contemporary intellectual property law.

“Pressing social need”

European Court of Justice goes political. In the Laserdisken-decision the justices argue that the protection of intellectual property rights, when it doesn’t make any sense, is still justified because there is “pressing social need” to do so. European DVD importers can no longer keep their shops open because of a misguided copyright directive. Meanwhile, overseas online retailers clap their hands: they have now monopoly over European consumers.

Just read this excerpt to get into the minds of European justices:


“”“ Breach of freedom of expression

64 Secondly, regarding the freedom to receive information, even if the exhaustion rule laid down in Article 4(2) of Directive 2001/29 may be capable of restricting that freedom, it nevertheless follows from Article 10(2) of the ECHR that the freedoms guaranteed by Article 10(1) may be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C”‘71/02 Karner [2004] ECR I”‘3025, paragraph 50).

65 In the present case, the alleged restriction on the freedom to receive information is justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property.

66 It follows that the argument that there has been a breach of freedom of expression must be rejected.”

I think there are two ways to start fixing this sort of decisions: (1) European courts should start accepting amicus briefs, and (2) European judges should board the next flight to the US, go learn some law & economics, and stop that theological reading of bureaucratic nonsense.

* * *

A possible solution to the legal question behind the case is that the exhaustion doctrine will be limited to EU citizens and companies. This would be in line with the copyright registration system in the US: if you register your copyright in the US, you get extra benefits. Also: if you open your company here in Europe, you would get extra benefits. Right now the benefit goes overseas while we continue to bear the collateral damages.