(a) Why no national treatment? The Finnish levy system is a sui generis arrangement. There is no international regulation of such levies. The system is outside the intellectual property rights. The Finnish Government and Parliament explicitly rejected the idea of rights in this field. The reason was that when blank recording media are manufactured or imported there is no work, no author, no copying involved. Instead of a copyright based system a very specific system was established. On the level of the legislation there is an obligation to manufacturers and importers to pay the levy. This obligation was enacted in accordance with the clause in the Constitution concerning public taxes. The Ministry of Education issues annually a decision on the rate of the levy. No one can claim a share of the levy. (b) Distribution to foreign authors. A major part of the proceeds of the levy is used for collective cultural purposes. The Finnish Composers' International Copyright Bureau Teosto includes a part of the audio levy in its individual distributions, and allocates some amounts to seven foreign organizations on the basis of reciprocal private agreements between Teosto and these organizations.

Finland does not apply any "rule of the shorter term" to phonograms and performances from other WTO Members concerning rights granted in the TRIPS Agreement.

(a)Direct and indirect reproduction According to Article 46 of the Finnish Copyright Act, a phonogram may not be copied or distributed to the public until 50 years have elapsed from the year during which the recording took place. This right in the same way as the right of reproduction of authors has always been interpreted as covering both direct and indirect reproduction. The distance between the place where the original exists and the place where the copy is established has no significance. (b)Reproduction by digital transmission The general rule applies.

We do not call giving full term of protection "retroactive". It is rather a question of whether all existing subject matter, within the limits of the term of protection, is protected. As regards works, the protection through TRIPS Article 9.1 is guaranteed by the law referred to in the reply to question 1(a) above. As far as performers and producers of phonograms are concerned, the obligations of Article 14.6, second sentence, were explicitly met in the context of the enactment of the Act prolonging terms of protection. The Act entered into force 1 January 1996.

The provisions of Article 12 are in full conformity with Berne Article 9(2) and TRIPS Article 13. The concept of "few copies" was narrowed by the Amendment of 1980 to mean "even fewer", single, copies for private use. The meaning of "private use" was in Finland already before 1980 rather narrow. In 1980 it was narrowed further: only natural persons may have the advantage of making copies for private use. The firms, companies, associations and other legal entities were excluded from those who may benefit from this provision. The amendment launched collective management in the field of reprographic copying in the educational activities, public administration and business life. Furthermore, no other provisions concerning fair use or fair dealing open any possibilities to make copies without authorization.

The clauses mentioned in the question are not compulsory licences but extensions of agreed collective licences. They concern always mass uses which would be impossible to be licensed transaction by transaction. The condition for application of these clauses is always an agreement between an organization representing a large number of rightholders and the user. The terms agreed by the organization apply to the use of the rightholders not directly represented by the organization. Because the collective management organizations are professional and efficient negotiators, they try and normally succeed in agreeing on terms which are reasonable for the rightholders they represent directly on the basis of binding mandates. The terms are as reasonable for the outsider. The organization has negotiated also on behalf of the outsider. In certain respects the rightholders not represented by the organization are in a better position than those who were directly represented on the basis of the mandates. Article 26 of the Finnish Copyright Act contains general provisions on extended collective licence provisions. The outsider has to be accorded the same treatment which the organization accords to those who had given them mandates. Secondly, the outsider has always a right to claim individual remuneration, even in cases when the organization does not accord such a position to the rightholder on behalf of whom it acted on the basis of mandates or transfers of rights. This claim is valid three years from the relevant Act of use.

(a) Public display vs. television Paragraph 2 of Article 25 of the Finnish Copyright Act demonstrates that the exhaustion of right of display in Article 20 does not extend to television broadcasts or rebroadcasting. (b) Public performance vs. broadcasting Paragraph 3 of Article 21 excludes television because the most of the programme contents in television is considered to be cinematographic works, not only films but also most of other contents. As concerns sound radio broadcasts, special school radio programmes included in the programme flow of the broadcaster of that time, were mentioned in the 1950's in the legislative history of paragraph 1 of Article 21. Everything used in the sound radio broadcasts, even in the school radio programmes has been systematically licensed and agreed. Paragraph 2 of Article 21 has never been interpreted to cover broadcasting. No rebroadcasting or retransmission practices fall under Article 21.

Compilations of data or other materials are protected by copyright if they are works in the copyright sense. The normal requirements for eligibility, the criterion of originality, apply. The sui generis right under Article 49 is an additional specific right. It does not exclude copyright in any database. The criterion of eligibility is completely different from that of copyright. It is lower as the sweat of the brow principle. The right is accorded to any maker of catalogue if a large amount of information items are compiled within the product. This form of protection has no relation to the protection provided for databases under TRIPS Article 12.

9. Please explain the difference in the type of use involved between the first and second sentence of Article 4 of the Copyright Act. In particular, please explain: the meaning of “using freely”; and whether the concept of “new and independent work” differs from a copyrightable adaptation generally.

(a)Article 15: Senior citizens' homes etc. The cases are special cases. The recording is done when the people sleep in order to watch the programme the next morning. (b)Article 18: Anthologies The case is special. The rightholder is entitled to a compensation. The exception may be invoked only five years after the publication of the work. The clause has been used in the publication of textbooks for educational purposes. The terms have always been agreed between the rightholders' associations and the publishers. The compulsory element has not been used in practice. The article prevents use of parts of works which were created for educational purposes in anthologies produced for educational purposes. This restriction is based on Berne 9(2). (c)Article 21: Certain public performances This is the most typical example of use of "minor reservations" in the Finnish Copyright Act. All the articles in (a) to (c) above are in full compliance with Berne 9(2) and TRIPS 13.

(a) Article 15 The provision in Article 15 means only time shifting. The use of the audio and video recordings is limited only to listening or watching the programme the next day. After that the recordings are meant to be erased. (b) Article 21 Paragraph 1 Performing a published work in connection with education means performing it in ordinary educational events at school. If works are performed in the school building but not in connection with education, e.g. in the evening after the school day, this provision shall not apply. Performing a published work at divine services means performing it at divine services which are arranged regularly on Sundays or other holy days. This provision shall not apply in other activities in parishes. Paragraph 2 The criteria settled in this provision are quite detailed and restrictive. The events meant in this provision are unusual in practice because performing artists rarely perform for nothing. We are not aware, at this time, of practical instances where this provision has been applied. These provisions contain examples of minor reservations allowed under the Berne Convention. Finland considers that Articles 15 and 21 of its Copyright Law is in full compliance with Articles 9(2) of the Berne Convention and 13 of the TRIPS Agreement.

The remedies available for copyright infringement have been described in detail in the Checklist of Issues on Enforcement. The criminal and civil remedies available fulfil the mentioned obligations in TRIPS. Enforcement provisions of the TRIPS Agreement will be reviewed separately in the second half of 1997.

The Danish levy system is - in relation to foreign rightowners - implemented in special provisions in Sections 18 and 19 in Ordinance No. 964 of 12 December 1995. It is hereby indicated that the provisions have no link to the existing international copyright conventions. In practice the criteria used in Sections 18 and 19 for payment to non-EU rightowners have the effect that foreign rightowners are treated in the same manner as Danish rightowners on the sole condition that in the country in question a remuneration scheme for blank tapes - regardless of its scope -has been implemented, which provides a possibility for payment of remuneration to Danish rightowners. The general framework of the Danish levy system is laid down in Sections 39 and 40 of the Copyright Act of June 1995 which are worded as follows: "Section 39: (1) Anyone who for commercial purposes produces or imports sound tapes or videotapes or other devices on to which sound or images can be recorded shall pay remuneration to the authors of the works mentioned in subsection (2). (2) The remuneration shall be paid for tapes, etc., which are suitable for production of copies for private use, and only for works which have been broadcast on radio or television, or which have been published on phonogram, film, videogram, etc. (3) Administration and control, including collection, shall be carried out by a joint organization representing a substantial number of Danish authors, performers and other rightholders, including record producers, etc., and photographers, and which is approved by the Minister for Culture. The Minister may request to receive all information about collection, administration and distribution of the remuneration. (4) The organization lays down guidelines for payment of the remuneration to the beneficiaries so that to the greatest possible extent distribution will take place in accordance with the copying actually made. One third of the annual amount for payment shall, however, be used to support purposes common to the authors and others within the groups represented by the organization, cf. subsection (3). Section 40: For 1993, the remuneration per minute playing time for sound tape is DKK 0.045 and for videotape DKK 0.0625. The remuneration shall be adjusted annually by the rate adjustment percentage, cf. Act on a rate adjustment percentage."

Denmark does not apply any comparison of terms with respect to the protection afforded by the TRIPS Agreement to performances and phonograms.

According to Section 66 (1) of the Danish Copyright Act sound recordings may not be reproduced without the consent of the producer until 50 years have elapsed after the end of the year in which the recording was made. This is understood to include indirect reproduction e.g. made on the basis of a broadcast or interactive transmission. According to Section 86 (2) the protection concerning recording and copying applies to all sound recordings regardless of origin.

As stated in the Danish answer to question 3 from the United States, Article 66(1) in the Danish Copyright Act of 14 June 1995 covers both direct and indirect reproduction of phonograms including reproductions made on the basis of a broadcast or interactive transmission. This is confirmed in the preparatory work (lovforslag n L 119 fremsat den 18 Januar 1995) where it is stated, inter alia, that the law is implementing Article 7 in the EEC Directive 92/100 concerning rental and lending rights where it is expressly stated that producers of phonograms shall enjoy an exclusive right to authorize the direct and indirect reproduction of their phonograms.

According to Section 90 (1) the Danish Copyright Act applies also to works and performances and phonograms etc., made before the coming into force of the present Act. The term of protection for works is 70 years after the year of the author's death cf. Section 63 of the Copyright Act. The protection of the works by authors who died in 1926 will consequently expire by the end of the year 1996. Comparison of terms is used according to Section 2 of the Ordinance. The term of protection for performances and recordings is 50 years after the year the recording was made cf. Sections 65 and 66. The protection of recordings made in 1946 will consequently expire by the end of the year 1996.

Denmark is of the opinion that answers to this question should be postponed to be given in connection with the review concerning enforcement which is scheduled to take place in 1997.

A database can be protected as a work according to Section 1 of the Copyright Act or if it consists of protected works it can be protected as a composite work according to Section 5 of the Act. In both cases the database is protected on the condition, that the compilation is the authors own creative effort and expresses his individuality. Quite a different matter is the protection provided for in Section 71 for catalogues, tables or other similar productions in which a large number of information items have been compiled. Those may not be reproduced without the authorization of the producer until 10 years have elapsed from the year in which the production was made public. However, the protection expires 15 years after the end of the year in which the work was produced. This is a "related right", i.e. a production outside copyright which operates for the benefit of the producer and has its main function in case such a compilation (also in the form of a database) does not meet the criteria for copyright protection. However, the provision also states that if a production of its kind, or a part thereof, is subject to copyright, copyright protection may also be claimed.

I. First sentence National treatment in favour of WTO Members operates as follows: (a)Authors (excluding phonogram producers and performing artists who both are, as such, neighbouring rightholders under German law). 1.Section 120 Copyright Act provides protection for works of authors of German nationality irrespective of the place of publication and irrespective of whether publication has at all occurred. 2.Section 121, paragraph 1 provides protection for works first or simultaneously published in Germany, irrespective of the nationality of the author. 3.Section 121, paragraph 4 provides protection for works of foreign authors to the extent provided by international agreements to which Germany is a Contracting Party. Such agreements are the Berne Convention as well as the TRIPS Agreement. The national treatment obligation under Articles 3 and 9, paragraph 1 TRIPS is thus materially incorporated in the Copyright Act. Consequently, the extent of the protection of foreign authors under this section depends exclusively on the interpretation of these treaty provisions, because the protection of German authors under German law - see section 120 above - is not limited by any further criterion of eligibility. The exceptions from national treatment provided for in the Berne Convention and accepted under Article 3 TRIPS are also materially incorporated in German copyright law by section 121, paragraph 4. (b)Phonogram producers 1.Section 126, paragraph 1 provides that German nationals and companies with German headquarters benefit from the protection of phonogram producers irrespective of the place of publication of their phonograms and irrespective of whether publication has at all occurred. 2.Section 126, paragraph 2 provides that protection is granted for phonograms first or simultaneously published in Germany irrespective of the nationality of the producer or, if the producer is a company, of the location of its headquarters. 3.Section 126, paragraph 3 provides that foreign citizens and companies having their headquarters outside Germany benefit from the protection afforded to phonogram producers to the extent provided in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligations under Article 3 TRIPS, including the exceptions provided for in the Rome Convention, are thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign producers depends exclusively on the interpretation of Article 3 TRIPS because the protection of German producers under section 126, paragraph 1 is not subject to any further criteria of eligibility. As far as the Rome Convention is concerned, Germany has notified to WTO that it does not apply the criterion of fixation. As German copyright law does not acknowledge phonogram producers as authors, Article 9, paragraph 1 TRIPS cannot be invoked in favour of them. (c)Performing artists 1.Section 125, paragraph 1 grants protection to German performing artists irrespective of the place of the performance and irrespective of the place of publication or the fixation of their performance. 2.Performing artists are granted certain specific exclusive rights either unconditionally or under certain conditions, according to section 125, paragraphs 2 4 and 6. 3.Section 125, paragraph 5 provides in addition, that foreign performing artists are granted protection to the extent provided for in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligation under Article 3 TRIPS is thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign performing artists depends exclusively on the interpretation of Article 3 TRIPS because the protection of German performing artists under section 125, paragraph 1 (above) is not subject to any further criteria of eligibility. II.Second sentence - national treatment with respect to the distribution of levies for private copying The statutory remuneration right for private copying under section 54 of the Copyright Act is granted, on the basis of national treatment, only to authors from WTO Members. Performing artists and phonogram producers from WTO Members do not benefit, as such, from the German private copying levy scheme. Consequently, the following explanations deal only with the remuneration right of authors. It has long been recognized in German legal practice that Berne Union Authors enjoy the statutory remuneration right for private copying under section 54 of the Copyright Act. Consequently, the German government considers that, as from 1996, this legal practice will extend to authors from WTO Members. As to the operation of the remuneration right the following explanations may be useful. The remuneration right is subject to compulsory collective administration, see section 54 h, paragraph 1. This means that the levy is collected jointly by the collecting societies representing the various groups of rightholders. It means further that authors must be represented by a collecting society in order to be able to claim participation in the distribution of the money received which the collecting society operates according to the distribution scheme that it has autonomously established and whose guidelines form part of its statute (section 7 of the Copyright Administration Act). Section 6 of the Copyright Administration Act obliges collecting societies to represent rightholders of German or other EU nationality who so claim. According to the predominant legal opinion of the German copyright community, this legal obligation operates also in favour of those other foreign rightholders who benefit from national treatment in respect of rights that are subject to compulsory collective administration. On the distribution of the total income from the levy for private copying, various agreements have been in force among the participating collecting societies. Agreements have also been concluded with certain foreign rightholders' organizations on their share in the distribution. The legality of the distribution practice operated by the collecting societies is subject to supervision by the German Patent Office as the state supervisory authority.