New Copyright Act

On 17 March 2016 the Norwegian Ministry of Culture presented a proposal for a new Copyright Act for public consultation. The main purpose of the proposal is to modernize and simplify the Act and make it more user-friendly. However, the Ministry also proposes several amendments of importance for the right holders and the users of protected content, particularly within technology and media. The most important proposed amendments are described below.

The deadline for filing comments in the public consultation is 8 August 2016.

Illegalization of streaming from illegal sources

Under the current Copyright Act it is not forbidden to stream music or film posted on the Internet without consent from the right holder. The Ministry proposes to illegalize streaming of content that is obviously made available without consent from the right holder in cases where the user acts intentionally and the use may cause substantial harm on the right holder's financial interests. The Ministry points out that it seems illogical that downloading from an illegal source is illegal, while streaming is legal, and emphasizes that the type of technology involved should not be decisive for the lawfulness. The practical consequences of the proposal is that streaming from sources that are well-known for offering material without the right holders consent will be illegal, and that the type of technology involved will be insignificant in the assessment of the lawfulness. The proposal clarifies that streaming from service providers like for example Popcorn Time is illegal.

The copyright holder's right to have his or hers name stated is strengthened

The Ministry proposes to strengthen the copyright holder's right to have his or hers name stated. This proposal inter alia implies that the copyright holder's name shall be stated in cases of embedding, i.e. when content from one website, e.g. YouTube, is integrated into another website, e.g. an online newspaper.

Clarification of the  quotation right

The Ministry takes the view that the right to quote should remain narrow in situations where quotation may affect the financial interests of the copyright holder, e.g. quotations of work of art or eye-catching images. The provision on media's right to quote from protected content and the right to quote in news reporting will be merged into a technology-neutral provision.

The scope of the provisions regarding extended collective licenses for clearance of audiovisual content and radio broadcasting are expanded

The Ministry considers that the current provisions on extended collective licenses within the radio and television field are outdated because they are linked to legal concepts that no longer apply in today's digital reality. Therefore, the Ministry proposes that the provisions on extended collective licenses shall apply to all "communication to the public", regardless of the method of transfer. Consequently, it will not be decisive whether the content is transferred by wire or wireless, or whether the transfer can be characterized as broadcasting or retransmission. Furthermore, the provisions will apply equally to communication to the public by linear television and on-demand transfer (where each recipient may choose the time and place of access to the content).

The rule of strict interpretation of contracts regarding assignment of copyright is established by law

The Ministry proposes to establish the rule of strict interpretation of contracts regarding assignment of copyright by law. The rule of strict interpretation means that the terms of an agreement regarding assignment of copyright, in cases of doubt, shall be construed in favor of the copyright holder. Further, the Ministry proposes to introduce a provision that stipulates that the purchaser has the burden of proof if it is unclear whether the copyright has in fact been assigned.

No exhaustion in cases of digital transmissions

The Ministry does not propose to broaden the right to re-distribute copies of a work that has been sold or transferred with the right holder's consent to also cover works that has been transmitted digitally (such as digital user licenses). The Ministry wants to await clarifications from the Court of Justice of the European Union or the copyright reform in the European Union before it proposes any amendments.

Right to reasonable remuneration when copyrights are assigned is established by law

The Ministry proposes to introduce a mandatory provision in the Copyright Act that establishes that the copyright holder is entitled to a reasonable remuneration when the copyright is assigned to be used for commercial purposes. The motivation for this proposal is that the imbalance that normally exists between the copy right holder and the purchaser involves a risk that the copyright holder may accept to assign his or her rights without reasonable remuneration. The provision shall not apply to copyright that is created by an employee in carrying out his work for the employer since the salary in such cases must be considered as reasonable compensation. 

Transfer of copyrights to works created by an employee is established by law

Many employers are not aware that it follows from non-statutory law that copyrights to works created by an employee is automatically assigned to the employer. This principle applies when the creation of copyrighted work is a part of the employee's duties and to the extent such assignment is necessary for the employment relationship to fulfil its purpose. The Ministry considers that the principle should be expressed in the Act, and therefore proposes to introduce a provision in the Act where the principle is explicitly expressed.

Termination of assignment agreements in cases of non-use

The Ministry proposes to introduce a right for the copyright holder to terminate an agreement regarding assignment of copyright in cases where the purchaser has not communicated the work to the public within three years. The provision shall not apply for works created by an employee in carrying out his work for the employer or to copyrights relating to computer programs.

Strengthening of the rules regarding enforcement of copyrights and other rights under the Copyright Act

It is often difficult to prove financial loss caused by infringements of intellectual property rights. Therefore, the Ministry proposes amendments to the rules regarding enforcement of copyrights and other rights under the Copyright Act. These amendments will lead to a strengthening of the right holder's position similar to the rules that were introduced in the Patents Act and the Trademarks Act in 2013.

It is proposed to introduce explicit provisions on injunctions prohibiting the continuation of an infringement and carrying out an imminent infringement. 

Further, the Ministry proposes significant amendments to the rules regarding compensation for infringements. If the infringer has acted intentionally or with negligence, the right holder is entitled to compensation that shall be determined on the basis of the most favorable of the three following grounds:

  • A reasonable royalty fee for the exploitation, as well as damages for any loss resulting from the infringement that would not have arisen in connection with licensing
  • Damages for any loss resulting from the infringement
  • Compensation corresponding to the gain obtained through the infringement

If the infringer has acted intentionally the right holder may instead claim compensation corresponding to double a reasonable royalty fee or damages for non-financial harm. This means that the right holder in cases of intentional infringement may choose that compensation shall be determined on the basis of the most favorable of five different grounds.

According to the proposal the right holder is also entitled to compensation in cases where the infringer has acted in good faith. In such cases the right holder may claim compensation, insofar as this is not deemed to be unreasonable, corresponding to a reasonable royalty fee or corresponding to the gain procured as a result of the infringement.

Moreover, the Ministry proposes amendments to the provisions on corrective measures, and a new provision stipulating that the Court may order that information about the  Judgement in an infringement case shall be communicated to the public at the expense of the infringer.

Oslo District Court will be the mandatory legal venue in all cases concerning infringements of intellectual property rights

The Ministry proposes that Oslo District Court shall be the mandatory legal venue for civil cases concerning infringements of rights protected under the Copyright Act. This implies that Oslo District Court will be the mandatory legal venue in all cases concerning infringements of all types of intellectual property rights.

If you have any questions regarding how the proposal will affect your company, please feel free to contact Camilla Vislie, Andreas Nordby or Magnus Hauge Greaker.