The DSM Directive
The Directive on Copyright in the Digital Single Market (DSM Directive) is slated to be implemented into the Finnish Copyright Act in 2021. The directive contains several interesting articles pertaining to the Finnish universities.
The first of these is Article 17, which introduces new obligations for online content sharing platforms (OCSPs). Article 17 makes OCSPs directly liable for any unauthorised copyright material posted by users on their platforms. In order to avoid liability, OCSPs will need to demonstrate that they have made their “best efforts” to obtain permission from rightsholders and acted diligently to remove any infringing content once notified by rightsholders. In addition, they must ensure the content remains disabled.
Article 15 reinforces the rights of publishers of news or journalistic content. Press publishers based in an EU member state are given a new ancillary right and will be entitled to restrict any unauthorised copying and distribution of their publications online.
Articles 18 to 22 provide greater protection for content creators. This includes information on how their works may be used; additional claims for renumeration if the original payment was disproportionately low compared to the revenue generated from the use of the work; revocation of licences or assignments where their works are not being used; and a new alternative dispute resolution procedure to resolve matters.
Articles 3 and 4 provide two exceptions to copyright (and database right) infringement for text and data mining. The first pertains to scientific research while the second allows those with lawful access to the work to conduct text and data mining, provided it has not been expressly reserved (by the rightsholder) and copies are only kept as long as necessary.
Generally speaking, any copyrighted material employees produce while fulfilling their work duties may be used by their employer. However, universities are specifically exempted from this rule. Therefore, the universities in Finland have made attempts to obtain their employees’ intellectual property rights (IPR) via signed agreements.
Because academic teaching has largely been conducted digitally during the COVID-19 pandemic, the universities have also begun to draft agreements regarding teaching materials. According to these IPR agreements, any university employee is obliged to hand over all their rights to their work (e.g. materials, notes, finished research text, teaching materials) without compensation while also agreeing to a very broad variety of terms that may lead to unforeseen consequences for the researcher or teacher. For example, most teaching materials include copyrighted material from others, and there usually is no legal right to pass the rights to this protected material to a third party (employer).
It is important to acknowledge that the employer may not unilaterally alter an ongoing employment contract. Essentially, this means the employer is not allowed to ask an employee to sign an IPR agreement during their employment relationship. If this IPR agreement is not reasonable, it may also be considered legally invalid or may be mediated later.
If an employee is offered an IPR agreement, or any other contract which the employer demands they sign prior to (or alongside) the employment contract or during employment, it is wise to contact the local shop steward or the trade union to find out about one’s rights regarding the agreement.
Text by Mia Weckman
Director of Advocacy, The Finnish Union of University Researchers and Teachers
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