Copyright Act, Section 42(3), provides the required authority in the criminal context. In the civil context, the applicable TRIPS obligations are satisfied by Section 38, which allows the copyright owner to take proceedings for recovery of possession of both plates and infringing copies.

General remarks As indicated in the questions, they are partly based on an outdated version of the Danish Copyright Act. The present Act on Copyright (Law No. 395 of 14 June 1995) came into force on 1 July 1996. The full text in English was notified to the TRIPS Council in April 1995. The application of the Danish Copyright Act with respect to WTO Members is governed by Section 17 of Ordinance No. 964 of 12 December 1995. Answer As regards the protection of works Section 17(1) of the Ordinance in general applies the principle of national treatment. As regards the protection afforded by the TRIPS Agreement to performing artists and producers of phonograms Section 17(2) applies the principle of national treatment. According to Sections 18 and 19 of the Ordinance blank tape levy, cf. Sections 39-49 of the Danish Copyright Act, is afforded to works, performances, photographs etc., originating in the European Economic Area and with respect to works, performances, photographs etc., originating in other countries, provided that in the country in question a remuneration scheme has been implemented for blank tapes which provides a possibility for payment of remuneration to Danish rightholders.

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.

(a)Protection for protected subject matter from other WTO Members. As the Marrakesh Agreement Establishing the World Trade Organization and annexed Agreements included provisions which belong to the field of legislation, the Parliament of Finland has enacted a law on accepting such provisions in the Agreement and annexed Agreements. This acceptance included the TRIPS Agreement. The law pronounces that the provisions are in force for Finland. According to the constitutional norms the respective substantive laws have to be brought into accordance prior to the entering into force of such a law. A similar law was enacted by the Parliament when the Berne Convention (1971) was brought into force for Finland in 1986. (b)National Treatment An unequivocal national treatment is accorded to all WTO Members as far as copyright and neighbouring rights provided for in the TRIPS Agreement are concerned. (c)Distribution of levies under Chapter 2a of the Finnish Copyright Act There is no right to compensation for private copying in the Finnish Copyright Act. No one can make a claim to receive remuneration, as no rights are involved. The Act provides for an obligation to the manufacturers and importers of blank recording material to pay a levy. The obligation to pay the levy was adopted in accordance with the clause in the Constitution of Finland concerning the imposing payment obligations to the citizen. The proceeds of the levy are used to compensate private copying according to a decision made yearly by the Ministry of Education and Culture. The compensations are paid out to the beneficiaries by organizations representing a large number of them. Nothing precludes distribution to foreign beneficiaries. There is, however, no obligation to do so.

(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.