5.1.7 Copyright provisions
In Denmark, protection of copyright lies in the field of cultural policy, and the current Law on Copyright dates from 27 February 2010 (jf. lovbekendtgørelse nr. 587 af 20. juni 2008 med de ændringer, der følger af § 5 i lov nr. 1404 af 27. december 2008, lov nr. 510 af 12. juni 2009 samt § 2 i lov nr. 1269 af 16. december 2009). Copyright is the responsibility of the Ministry of Culture. The Act specifies and defines the mutual rights and obligations of the author, producer and user. The Danish artists' rights protection represents the "droit d'auteur" tradition, which asserts the authors' and performers' economic and moral interests.
According to Danish and Nordic tradition, copyright laws must primarily protect the rights of the creator and, ideally, serve as the undisputed guarantor of aesthetic freedom and financial revenue to the artists. Under the Danish Copyright Act, the originator of a literary or artistic work holds copyright for that work.
Examples of protected works are literature, music, theatre, film, the visual arts – including photography, architecture, decorative arts – and computer programmes. It is the expression of the work which is protected – that is to say, the work's singular design or presentation. Copyright applies from the moment of creation of the work. Thus, protection does not depend on any kind of registration. The copyright runs for 70 years following the death of the copyright holder.
Infringement of copyright may incur civil liability and criminal liability in the form of fines or imprisonment. Provisions aimed at protecting neighbouring rights e.g. performing artists (actors, musicians, dancers, etc), audio producers (record companies), film producers, radio and TV companies, photographers and producers of catalogues, tables and databases etc are also covered by the Copyright Act. The term of protection for these rights is 50 years from the time of production. The term of protection for catalogues, databases etc, however, only runs for 15 years from production or publication. Registration is no prerequisite for protection in this field either.
The Copyright Act fulfils Denmark's international obligations with regard to the protection of rights set forth in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, the Rome Convention, and the European Agreement on Protection of Television Broadcasts. The Act also complies with European directives on the protection of computer programmes, rental and lending rights, satellite broadcasting and cable re-transmission, the term of protection, and the protection of databases.
The Danish (and Nordic) copyright legislation provides for organisations made up of copyright holders entering into collective agreements with users and producers regarding compensation for individual works and performances, the size of royalties, etc.
Rights holders under the Copyright Act have established collecting societies, which administer the copyright on behalf of the holder. Examples of collecting societies in Denmark are COPYDAN, KODA, NCB and Gramex. Under the COPYDAN umbrella, such societies recover and distribute remuneration paid in connection with cable re-transmission of television programmes, the sale of blank audio and video tapes, as well as the copying of protected material. COPYDAN also administers remuneration for the commercial resale of works of art (droit de suite) and the exclusive rights of painters and sculptors. KODA is in charge of authors' rights to public performances of music. The Nordic Copyright Bureau takes care of the mechanical rights of music in connection with the distribution of CDs, films, etc. Gramex controls the remuneration to performers and producers from sound recordings in connection with public performances on radio and television and other public performances.
In principle, all the main aspects of copyright legislation in Denmark and the other Nordic countries have been identical for many years. The pan-Nordic unit of jurisdiction may be considered as a practical provision to encourage cultural development and exchange in the Nordic countries as well as a tool to improve general understanding of specifically Nordic solutions for international copyright co-operation, especially under the auspices of the EU.
Copyright in the Nordic countries is based on § 2 of the national Copyright Acts. However, in all of the countries, copyright is limited by a number of exemptions to secure "fair use". The legitimate economic interests of the copyright holders to protect their rights are weighed against public demand for free utilisation of protected works. Technically, this weighting is carried out by imposing limits on the rules. Three different legal constructions restrict copyright in principle:
- free utilisation – the most radical form of restriction, which allows free use without prior permission and without remuneration to the copyright holder;
- compulsory licenses – a construction that permits use without prior permission, but copyright holders have the right to remuneration; and
- collective agreement license – a special Danish / Nordic construction, which involves users entering into an agreement with a representative organisation, granting users the right to use all of the copyright holders' works of the type in question, including works that do not fall under the auspices of the organisation. In other words, agreement licenses are based on voluntary agreements entered into between the parties, but also involve an element similar to compulsory licenses in relation to outside copyright holders.
This latter model, the collective agreement license, in particular clearly illustrates the common perception of the basic problem facing copyright legislation in the Nordic countries: Finding a balance between the copyright holder's right to control of, and remuneration for, the exploitation of his / her own work and society's need for quick and easy access to knowledge, information, etc.
Recent changes, debates and challenges
Thus, the Danish / Nordic approach to solving the basic copyright problem is pragmatic. Voluntary agreements between the parties provide as flexible a clearing mechanism as possible. Digital innovations have increased the need for pragmatic solutions to the clearing problem. In the right form, the Nordic agreement model and collective administration could be one of several answers to this challenge. A recent example of this is an agreement which KODA made with non-commercial Creative Commons licenses, allowing its members to give gratis access and use of their music for non-commercial purposes.
From a Danish point of view, one of the most important challenges for copyright protection in the years to come is how to prevent piracy in the global reality of digitalisation. The issue requires an international answer from the UN, UNESCO, GATS or another global organisation. Internally, Denmark will have to renew the Copyright Act according to the digitalisation of Danish cultural heritage organisations such as Denmark's Radio and Television (DR) (see chapter 5.3.7), the museums etc.. The purpose is to create a "win-win" situation for the rights-holders, producers and citizens, by means of the collective agreement license. KODA's initiative concerning implementation of the non-commercial Creative Commons license is a step in that direction. A move in this direction is the implementation of Article 50.2 of the Copyright Laws (Law No 231 of 8 April 2008) which contains potential for agreement licenses. In 2011 challenges concerning streaming services that provide music were high on the agenda. KODA was an active participant in negotiating terms for artists, starting with an agreement with Danish telecom provider TDC, and its service Play. Since then, services such as WiMP, Waves Out, rara.com, BibZoom, Spotify – and most recently Sony's Music Unlimited, have joined the market. KODA's main argument is that the Danish consumers demand an easy, cheap and unlimited access to music, and if this is not provided in a legal manner – users will seek illegal alternatives. However, from KODA's viewpoint, it is important that artists get reimbursed and therefore negotiates terms that are suitable for the artists. The problem is that the Multi-National recording industry makes demands, which leaves little for the individual artists; this is demonstrated by returns for streaming services which demonstrate how little income is made by the artists themselves. Therefore, even though users gain in terms of accessibility and enterprises in terms of money – the artists seem to have been left the shortest straw.
Another recent debate concerns KODA and music blogs. Again, digital communication poses actual challenges to dissemination, use and payment of music. In this case, it is not fulfilling for the organisers of amateur and fan-based, non-commercial music blogs to get permission from artists and record companies, as they also have to pay KODA. Without this payment, the act of writing about, and give readers / listeners the opportunity to stream or download songs, is not legal. This is just one of many "gray zones" that digitalisation has imposed on the field of cultural policy – and in this case is currently being solved between KODA and the music bloggers. Even though to many, it does not sound fair that amateur, non-commercial bloggers have to pay for writing about their favourite music / musicians – KODA has in this case proved to be flexible and is currently negotiating alternative models that could benefit all actors.
The ad hoc cases concerning streaming of music on the Internet will keep on surfacing. A recent example is a case between Audio & Visual Aps and KODA. Audio & Video is a company that offers streaming of music through the Internet to customers such as stores and cafés. Audio and Video took their dispute to the committee for administering copyright, as in their view KODA was making too rigid demands on behalf of their members. The committee thought differently, and on 18 January 2012, it gave a verdict in KODA's favour. This is only one of many cases to come, where judgements within the sphere of digital culture need to be made on an ad hoc basis.
Report on Copyright in the digitisation of cultural heritage
In October 2006, the Ministry of Culture set up a working group on digitisation of cultural heritage. The working group has drawn up several proposals to digitise selected priority areas of cultural heritage. The overall focus of the working group work and problem solving has been the preservation, dissemination and accessibility of cultural heritage. The aim has also been to promote cooperation and ensure a rational division of labour between stakeholders nationally and internationally. The Working Party Report on digitisation of cultural heritage was handed to the Ministry of Culture in April 2007 (see: http://www.kum.dk copyright for downloading of report).
The working report was followed by a final report, issued in 2009. Here, the purpose of digitisation is again phrased in terms of protection, conservation and accessibility of the cultural heritage. Amongst the considerations taken into account in the report are technical accessibility, i.e. an effective process that results in usable digital files, that the files are long-lasting and reliable, that internationally acclaimed standards will be used and that they can easily be located by search machines like Google and Europeana. Another reoccurring challenge is the issue of digitalisation and copyright. Much of the data / material that the Danish cultural institutions preserve are still covered by copyright and the report underlines the importance of not succumbing to a "20th century black hole". In order to avoid that, the Parliament passed what is called an "agreement based license" (Law nr. 3231, 8. April 2008), which reduces the administrative complexities in providing digital access to copyright protected material. Finally, the report discusses the importance of effective dissemination. Here, it is suggested that the metadata is searchable in English (as well as in Danish) and to allow users to search both for metadata, as well as via indexing of file content.
The Danish EU Presidency, January to July 2012, will make copyright in digital times an important theme to discuss in the coming years (see chapter 3.4.3).
Chapter published: 10-04-2012