Summary of opinions given by the Copyright Council

1988:1 Published work, citation, student paper

In opinion 1988:1 the Copyright Council considered that two persons had done their seminar works independently and that the similarities in them were partly the consequence of using the same source material. The Council, however, stated that the other person had taken so many direct citations from the other person’s text that it could not be regarded as permitted citing in accordance with article 14 (nowadays 22) of the Copyright Act.

The council was also asked how the compensations according to the Copyright Act are determined. The Council stated that if a person uses copyright protected material contrary to the provisions of the Copyright Act that person has an obligation to compensate the right owner according to article 57. Obligation to compensate the right owner is not dependant on whether the person knew that he was acting against the law or not. If the person acts intentionally or with negligence he is also obligated to compensate other loss and damage.

1988:2 Film, transfer of rights, work of a student

Opinion 1988:2 concerned video which had been made by students within their studies. The Copyright Council considered that copyright to the video belonged to the students but the videotape material belonged to the university. The Council considered that the director’s contribution did not bring him copyright to the video. In addition the Council considered that university’s funding did not give the university producer’s right in accordance with article 39.

The university had covered costs of making the video programme worth 10 000 FIM. In addition the university had bought the videotape material. The Council referred to the decision of the Supreme Court (KKO 1987:8) in which the court had stated that the employer, who had paid the costs of the film material, had right to keep the negatives of photos taken by a newspaper photographer.

1989:4 Unpublished/published work, student paper

Opinion 1989:4 concerned publicity of students’ thesis. According to the opinion the author has right to prevent public release of his thesis. If the paper is not made public the exceptions in the Copyright Act which are related to the release do not come into force.

When the paper is left to be marked it may be regarded to become public in accordance with institution’s internal guidelines and practices unless the author specifically has denied release. Release of the paper means that exceptions in the Copyright Act related to the release come into force.

Although the author may prevent release of the work the author cannot prevent public scientific criticism of the work.

1991:13 Picture as a citation

Opinion 1991:13 concerned a novel named Codex B which could be created and used only with a computer containing certain programmes. The opinion petitioners wanted to publish and sell the novel and they asked if they could be obliged to pay compensations as they had used material which was not made by the working group of the novel.

Questions concerned mainly picture material. The Copyright Council considered that the picture material could not be used in accordance with the citation article 14 of the Copyright Act or article 7 of the Photograph Act which were in force then because the novel was not scientific or critical presentations. Because the novel was not meant to be used in teaching article 16 of the Copyright Act and article 8 of the Photograph Act could not be applied either. In addition the Council considered that article 25, according to which a work could be shown in public, could not be applied to the picture material as putting the pictures to the novel would have required that copies were made and making copies was not allowed without creator’s authorisation. The Council also stated that even if article 16 were applicable compensation should be paid to the right owners.

1992:6 Object of protection, catalogue

In opinion 1992:6 the Copyright Council considered that a set of office stationeries constructed at the University of Joensuu within research work could not be protected as a work according to article 1 or article 49 of the Copyright Act.

1993:8 Photograph, work of art

In opinion 1993:8 the Copyright Council considered that article 25 could not be applied. Photograph of a work of art, which was kept in the premises of the University of Helsinki, could not be taken and used in the university’s own magazine called Yliopisto without the right holder’s permission.

1995:6 Communication to the public, film

In opinion 1995:6 the question was if the Institution of International Communication of the University of Joensuu could show films made in different parts of the world in the institution’s auditorium to the members of a particular organisation. The Council considered that if the film showing can be regarded as public, the institution would, according the Bern convention, need authorisation to it from the citizens of the states which have acceded to the convention.

1995:9 Video recording, film, economic and moral rights

In opinion 1995:9 the Council considered whether the video recording, which had been made of a congress arranged by the Institute of Musical Sciences at the University of Helsinki, could be regarded as a work according to article 1 of the Copyright Act and who owns rights as a director, cinematographer, manuscript writer and recorder. The Council also discussed film producer’s rights according to article 39. The Council stated that the university could have producer’s rights in accordance with article 39 but there were contractual ambiguities and problems.

1996:2 Copyright to medical illustration of a text and guidebook

In opinion 1996:2 the Copyright Council considered that several experts had written parts of a text and guidebook. The writings contained pictures. In case both the illustration and the text could be regarded as works protected by copyright they would together form a work containing works joined together so that the work contributions of each creator could be separated from each other. The Council also considered that the measuring results in table format, explanatory pictures and diagrams in the book were not independent and original enough in order to be protected by separate copyright.

1996:11 Copyright to translations

In opinion 1996:11 the student asking for opinion studied translating and interpretation at the University of Tampere. He wanted to know whether translating in order to practice and learn translating was permitted without asking authorisation from the author of the original text.

The Copyright Council considered that translating for private use for example for studying and translating as training was permitted without asking the author’s permission. The translation, however, could not be released or published without asking permission from the author of the original text. The translations could not be copied in accordance with article 12 (private use) as copies could be made only from such works which were released.

1996:12 Photographer’s rights

In opinion 1996:12 a photographer had taken photos for museums and sold copies to them. Negatives had been saved in the archives of the museums. The photographer wanted to know who had right to publish the photos, if the museum had right to pass on the photos to be published by other people, who had right to make copies from negatives and should the name of the photographer be mentioned when photos were published.

The Copyright Council stated that it could not interpret agreements but could only present general principals concerning contractual relations. It considered that if the photographer had taken photos for the museums on assignment user rights to the photos should be determined according to agreements that had been made between the photographer and the museums. Rights to the photos belong to the photographer but these rights may be assigned by agreements. If no specific agreement was made one had to try to find out what had been agreed upon and whether the rights had been assigned and to what extent by interpreting the assignment relationships.

If the photographer had offered the photos to the museums without specific commission rights to the photos were not assigned along with the copies of the photos without separate agreements. If an agreement was made the assignee could not, however, modify the photos or assign rights further unless specifically agreed upon separately. Thus the photos could be passed on to be published by other people only if this had been agreed upon with the photographer.

Photographer’s name had to be mentioned in accordance with good custom when photos were published.

1996:13 Scientific citation of copyright protected material when works are published in the Internet

In opinion 1996:13 the question was whether sound recording could be citied the same way as notes and whether the right to quote was different in the web than elsewhere. The Copyright Council was also asked if the permission of the right holder was needed in order to cite recording material and notes in the web and should the right holders be reimbursed for such citing.

As an example of citing was mentioned that a work is cited for scientific purposes so that fragments of sound recordings are linked to the note examples. This kind of citing was considered allowed in principal but the permissible extent of citation should be determined case by case. The Council stated that the general provisions of the Copyright Act concerning citing were applicable also in the web but the Council pointed out that when works are cited in the Internet several good manners to make references to the works may have to be applied.

1997:8 Citation from a scientific research in an advertisement

In opinion 1997:8 researchers wanted to prevent the advertiser from making references to their research results. The researchers considered that their research was cited misleadingly when products were marketed. Reports in a scientific publication were given as source of information in two advertisements in a magazine. In addition a graphic presentation from one of the reports was copied to the advertisement. The Copyright Council did not regard the graphic presentation as a protected work according to the Copyright Act and it also considered that mere reference to the research in an advertisement did not infringe the researchers’ copyright.

1998:7 Copyright to computer readable compilation of letters

In opinion 1998:7 a research group at the University of Helsinki wanted to know what kind of work their computer readable compilation of letters was. The work was a compiled work according to article 5 of the Copyright Act but partly it was also regarded as a database according to article 49 and rights to the database were not clear. Rights could in principal belong to the creators, to the university or to the Academy of Finland.

The Copyright Council was asked which part of the work created copyrights and was only scientific work to be regarded as such work, what were the rights of the Academy of Finland, the University of Helsinki and the Institution of English Languages as financers. The compilation was made at the University of Helsinki in a project which was financed by the Academy of Finland and the university.

Edited material was collected to the compilation. The Council was asked whether it was relevant how extensively the works were used and edited, when copyrights could be considered to have been transferred to those persons who were correcting the editions, how the editions were protected according to the Copyright Act and about other rights related to the making of the material.

The Council considered that the compilation was a compiled work in accordance with article 5 of the Copyright Act and copyright to it belonged to the persons who had made it. The Council stated, though, that the compilation was protected by copyright according to article 5 only to the extent it could be regarded as fulfilling the requirements of originality.

Copyright to the compilation or database does not give copyright to the material in the compilation or database. Copyright holder’s consent is needed to use such material. In this case the letters were so old that copyright was no longer in force but the compilations of letters where material was taken could be protected as catalogues according to article 49 of the Copyright Act.

The Council also stated that according to article 40 b of the Copyright Act copyright to database is transferred to the employer except when the database is created by an independent creator within teaching or research at a university.

1998:20 Teaching material and copyright issues

Opinion 1998:20 concerned a web project which had been made in cooperation by the universities of Helsinki, Turku, Tampere, Jyväskylä and Joensuu. The Copyright Council was asked whether the project could own copyrights and if so what happens to the rights when the project has ended and what happens if the right holder dies or otherwise is not able to take care of the material. In addition the Council was asked what kind of copyrights could be attached to the tests and research methods, about rights to interviews on videos, to sound recordings and about transfer of the rights.

The opinion covers several rights under article 1 as well as neighbouring rights under chapter 5 of the Copyright Act. The Council has also handled the question of when copyrights belong to a legal entity and when to a person.

The Psykonet-project could not be regarded as an independent legal entity and it could not own any copyrights. The cooperation parties had to agree amongst themselves how to administer the rights.

1999:15 Copyright to hogback research

Hogback research was made in 1972-1989 and starting from year 1978 at the University of Joensuu. Research was financed by the Academy of Finland, different ministries, cities, foundations, funds and the university.

The Copyright Council considered that the project entailed different kinds of arrangements and different kinds of juridical relationships and it remained unclear for whom the material was intended. It was unclear who owned rights to the database.

1999:17 Copyright to database

Opinion 1999:17 concerned copyright to a medical database which had been made of population study. Persons which had participated to the planning and implementation of the medical research had partly had professorships and partly they had been assistants at the University of Oulu. Part of the time they had worked in other positions than as employees of the university, among other things as researchers of the Academy of Finland. The project had been funded from several sources and the University of Oulu considered that the project had been mainly funded by such funding which had been directed to the university.

The Copyright Council was asked who owned rights to the database and how the material in the database was protected. In addition the Council was asked what the consequences of unauthorised use were, should the users of the database refer to the database and the creators and what economical consequences could follow when significant parts were taken from the database.

The Council considered that the database was protected by article 49 not article 1 of the Copyright Act. According to article 49 as a producer of the database is considered that natural person or legal entity which has initiated and is responsible for the creation of the database. As the Council is not able to interpret agreements or solve cases it could not answer who owned rights to the database.

University of Oulu did not consider that rights to the database belonged to it but it stated that this kind of projects were implemented with public funding which came to the university so the university should be responsible for using the results appropriately. University of Oulu also stated that further research and other use of the research results would be very difficult if individual researcher could determine how to use copyrights.

2001:10 Copyrights of students at polytechnics

In opinion 2001:10 Etelä-Karjalan Ammattikorkeakoulun Opiskelijayhdistys ry and Pohjois-Savon Ammattikorkeakoulun Opiskelijat ry, both student associations of polytechnics, requested an advisory opinion on the following subjects:

1) In student guides of some of these polytechnics it is stated that the works of the students created as their apprentice works under the guidance of the school and with its resources and which are part of their examination or similar works belong to the school. The associations ask whether this kind of practice at the schools is in accordance with the Copyright Act?

2) Is such an agreement between a student and a polytechnic which is valid for the whole studying period and which assigns copyrights and all the works to be used at the polytechnic in accordance with good practice and if so which rights do students retain to their works?

First the Copyright Council referred to article 1 in the Copyright Act and stated that one who has created a literal or artistic work has an exclusive right to his creation and the copyright owner is always a physical person, for example a student at a polytechnic. Copyright can be totally or partially assigned according to article 27 and an agreement can be signed on the transfer of the copyrights. Copyrights of the students at a polytechnic may be assigned to the school only by an agreement and it must be interpreted by that agreement which rights are transferred and to what extent.

The Council referred to its opinion 1989:2 and its recommendation to agree on the assignment of the copyrights separately with each student. The Council also emphasised that the transfer of the copyright protected work to the school as such did not include an assignment of copyright.

Concerning the question of whether the agreement on the assignment of the students’ copyrights to the school which is valid through the whole studying period was in accordance with good practice, the Council first referred to article 3 in the Copyright Act and stated that this article on moral rights restricts the ability of the parties to agree upon the copyrights. The student has right to be acknowledged as an author when the work is made available to the public and the author can assign moral rights only to restricted extent.

As the parties had not included any example of an agreement but asked in a general level for an opinion whether the agreement between the school and the students is in accordance with good practice and as the Council according to article 55 only gives opinions on the interpretation of the Copyright Act, the Council considered that it could not answer the question number 2.

In the end the Council stated that the students at the polytechnics are comparable to other students in other institutes of learning and referred especially to its opinion 1989:2.

2002:8 Photographs on Internet pages

In opinion 2002:8 there were a photograph on a company’s web pages. In this photograph the applicant was photographed with his father beside a van. The photo was taken in year 1963 or 1964. The applicant wanted to know if keeping the photo on the web pages was considered as public performing and if the applicant had right to forbid it since he was himself in the picture?

The Copyright Council dealt with the issue of making photos to order and stated that before year 1995 rights to photos that had been made to order were assigned to the orderer. If someone had gained such rights to photos these rights were still in force although the provision concerning such photos had now been abolished.

The Council considered that the photograph was protected as an ordinary photograph in accordance with article 49 a of the Copyright Act. According to this article the photographer has exclusive right to dispose of the photo and this right holds until 50 years have past from the end of the year the photo was made. As the photograph had been made either in year 1963 or 1964 it was still protected. The photographer had right to decide if the photo was saved on Internet server.

In addition the Council stated that the persons in the photograph had no right to dispose of the photograph according to the Copyright Act. They had no right to decide whether the photo was saved on the Internet server or not.

2002:11 Web based teaching of music and copyright

In opinion 2002:11 the Copyright Council was asked if music examples could be used as citations when music was taught in the web and whether the Council regarded MIDI files as sound files or note material.

The Council referred to legislation preparation material and considered that it was not permitted without the copyright holder’s authorisation to publish compilation which had only been made of composition parts. Otherwise making quotation of compositions should be judged in accordance with the general principals of citing. The Council considered that a MIDI file can be a way of presenting a composition. The Council also stated that as far as citing is concerned it did not matter in what kind of form, wav, streaming, audio, mp3 etc, the citation was made as far as the general principals were fulfilled. Citation is possible within web teaching for example in connection with scientific text about music.

In addition the Council has discussed the use of article 18 of the Copyright Act within web teaching and it has considered that this article cannot be applied to web teaching as it only allows making copies of works not communication to the public. To such compilation cannot be included works of performing artists or sound producers either.

2002:16 Video clips as citations for teaching purposes on www-pages

In opinion 2002:16 a project group wanted to make web pages from a book of a teacher at a polytechnic and make it more visual by using for example video clips. The Copyright Council was asked if video clips could be used as citations and how long such clips could be when they were made to support literal analyse and for teaching purposes. The Council was also asked if photographs taken from the video clips could be use as citations to support literal analyse. In addition the Council was asked if it made any difference that access to the web pages was restricted by password only to those participating to the teaching.

The Council stated that the provisions of citing were applied both to works under article 1 of the Copyright Act and to works covered by neighbouring rights.

The Council considered that the short documentary film was a work protected by article 1 of the Copyright Act. Creator’s permission was needed if the whole film was taken as part of the teaching material. According to the Council the permissible length of a quotation had to be decided case by case. The Council also stated that even if the film could not be regarded as a protected work under the article 1 and it thus could be used without the creator’s authorisation it could be protected by producer’s rights under article 46, though.

The Council stated that citing a whole picture according to article 22 of the Copyright Act was as such not prohibited but it could be problematic and it was not recommended. Such use should be looked at with reservation.

2003:14 Making copies of concepts in a literary work

In opinion 2003:14 A considered that concepts composed of one or two words which he had invented and used in his own books had been used in other books without his permission.

The Copyright Council referred to its earlier opinions in which it had among other things considered that sentences which were composed of only three or eight words were not protected as literary works according to article 1 of the Copyright Act. The Council also stated that copyright does not protect concepts, terms and titles as such and the fact that you need expert knowledge, research and a lot of work to invent such concepts had no meaning in deciding whether the work was protected by copyright or not.

A’s textbooks as a whole were protected by copyright according to article 1. Permission from the right holder had to be gained if the whole books or independent and original parts of the books were copied. But such parts of the books which were not protected by copyright could be used without asking the right holder’s permission. As the concepts which A had developed as independent titles or concepts were not protected by copyright they could be used for example in other textbooks. In addition the Council stated that such references that had been made from A’s books would be permitted anyway according to article 22 of the Copyright Act.

2003:19 Columns and interviews on a news portal

In opinion 2003:19 A had written columns and interviews for a news portal in Internet. All writers had written their texts voluntarily. When A resigned he wanted to take all his columns and interviews away from the pages. A considered that he had given his writings to the pages only to be published there and that he still owned copyright to the texts as well as right to have the texts erased. The web page holder did not agree to erase the texts.

The Copyright Council stated that in order to speak out to whom copyright to the texts belong to it should be able to clarify what had been agreed on copyrights and assignment of rights between A and the portal keeper or what could be regarded as having been agreed upon. The starting point is that copyright belongs to the author who disposes of the rights in every way but copyright or part of it can be assigned for example by silent agreement. A silent agreement can come about for example when according to the circumstances or established practice it can be considered that agreement has been made to a certain extent. The author may also give permission to use works in certain situations without assigning copyright.

2005:02 Copyright in mathematics and physics exercises and exercise complilations

In opinion 2005:05 the applicant requested information on how the Copyright Act enables rigtholders to control mathematics and physics exercises and exercise complilations.

The Council mentioned that an excercise book may be protected as a catalogue under Section 49 of the Copyright Act if it includes a large number – hundreds or thousands – of excercises or model answers. An excercise book may also be protected as a database under Section 49 if its obtaining, verification or presentation has required substantial investment. Protection under Section 49 covers making copies and distribution of the work and/or substantial parts of it.

The Council also noted that an excercise book may be protected as a work under Section 1 if it passes the threshold of originality. This also concerns parts of the work which pass the threshold.

For clarity the Council pointed out that individual pieces of information or mathematical formulas are not protected by the Copyright Act. Thus copyright does not restrict their use.

In opinion 2006:11 the Finnish Union of University Researchers and Teachers asked whether lecturers at universities and other higher education institutions had right to decide how their lecture performances were recorded and further distributed, when article 14.2 of the Copyright Act was applied to teaching in higher education institutions, is copyright different when applied to different kind of teachers, part time teachers, permanent staff or teachers working with external funds and to what extent a university as an employer could use a teacher’s lecture performance.

The Council stated that lectures can be recorded in accordance with article 14.2 but this article does not give right to distribute the presentation further. The article is not supposed to widen the lecture event from what it is when given by the lecturer himself but the recording is allowed only for temporary use. Permanent activity is not allowed by this article.

The Council also stated that copyright does not depend on the quality of the employment. The employer does not gain wider rights than others and universities cannot according to article 14.2 regularly distribute lectures through web or otherwise.

2007:3 Computer programme as a student work

Students of a polytechnic created a new browser based application as a student work so that the students planned the programme, its use and content. Actual programming was done by a third student who was an employee of a city. The programming was done along with the requirement specification.

Rights to the requirement specifications as a literal work belonged to the students who by doing only this literal material did not get any rights to the programme. As the programme was done in employment the Council stated that according to the Copyright Act rights to the programme belonged to the employer, i.e. the city. In addition the computer programme together with the literal material formed a compilation and rights to this compilation belonged both to the students and the city as an employer of the student creating the programme. The right holders of the compilation disposed of the compilation together but the requirement specification makers had right to dispose of the literal material and the city of the programme.

In opinion 2008:10 the applicant requested the opinion of the Council on whether he had copyright to course material he had produced and whether his copyright had been infringed.

The Council argued that the document in question was not original enough in a sense that it could be concidered as a work under Secition 1 of the Copyright Act. Furthermore it did not consist of large number of information in a sense that it could enjoy protection as a catalogue under Section 49. Furthermore it could not be concidered as a database under Section 49 whose obtaining, verification or presentation has required substantial investment.

Lastly the Council noted that the picture in the front cover of the document was a photograph within the meaning of Section 49 a whose right holder has an exclusive right to decide on its use.

2010:9 Student’s copyright in a practice work

The case concerned student’s copyright in a practice work and copyright-related issues regarding the introducion of a plagiarism detection system at a university.

The Council stated that the threshold of originality must always be assesed case by case although with regard to literal works the threshold is usually quite low. If a student uploads his or her work to the system, there is no problem with regard to copyright. If the university carries out the upload, approval of the student is required. However, if the public (or in this case all the teachers in the university) has access to the system, approval is always needed.

In the case the applicant asked the opinion of the Council on the threshold of originality of technical drawings published in a textbook. The Council argued that the drawings which illustrated the functioning of the engine and technical system of a vehicle did not represent the personal creative solutions of its creator in a way that no one else could not have ended up in the same result. The Council concidered that the drawings were not original enough to pass the threshold of originality.

2012:6 Copyright in teaching materials

In the case the applicant requested the opinion of the Council on copyright protection of teaching materials. The Council argued that the materials did not include such literary elements that could be concidered as a literal work under Section 1 of the Copyright Act. The materials did not enjoy protection as a catalogue under Section 49 either because oblectively they did not comply a large amount of information. Lastly the materials fell outside of protection as a database under Section 49 because they did not require a substantial investment.