Innovation Europe > News > Innovation EU Vol2-1 > SIMONSEN Advokatfirma

This will be a very important year for protection, particularly of copyright, in Norway. Two important civil cases are currently before the courts, a third case is before the Norwegian Privacy Appeals Board, and the Ministry of Culture has started preparations for a full review of the Norwegian Copyright Act.

Establishing to what extent current Norwegian legislation is unclear or insufficient in any or all of the areas described below, has been one of the primary objectives of work at SIMONSEN on behalf of rights holders the last few years. Reminding inter alia the Ministry of Culture of the importance of addressing all these challenges during the current revision of the Copyright Act (intended to be concluded in 2011) will be one of the main priorities at SIMONSEN for 2010.

The telenor case

On 9 February 2010, the Borgarting Court of Appeal concluded that there is no legal authority in Norwegian law – more specifically contributory liability (physical and/or passive) in accordance with Section 54 and Sections 55 of the Norwegian Copyright Act – for demanding that Internet Access Providers such as Telenor block their customers’ access to the illegal file-sharing service The Pirate Bay. There are obvious weaknesses in the decision with respect to the assessment of inter alia the consequences of Norway’s obligations according to Article 8.3 of the Copyright Directive. The rights holders are currently considering an appeal to the Supreme Court.

The altibox case

Gulating Court of Appeal’s decision, 9 December 2009, in the case where rights holders have demanded that the Internet Access Provider Altibox secure evidence – of the identity of the subscriber who at a specific time had been assigned a specific IP address – outside a lawsuit in accordance with Chapter 28 of the Norwegian Dispute Act, has been appealed to the Supreme Court. The rights holders have documented that the IP address in question had been abused to make protected works available to the public in violation of the rights holders’ exclusive rights. The Norwegian Post and Telecommunications Authority’s consent was obtained on 17 April 2009. The court’s decision is temporarily being kept from public access at the rights holders’ request.

The SIMONSEN license case

On 13 July 2009, SIMONSEN filed an appeal with the Norwegian Privacy Appeals Board of the Norwegian Data Inspectorate’s decision not to extend SIMONSEN licence to assist rights holders in their efforts to stop illegal file sharing, for a third period based on what it describes as lack of "political signals". The Ministry of Culture has refuted this assertion inter alia in a letter to SIMONSEN supporting a second extension of the licence. The Privacy Appeals Board’s decision is expected this quarter. The SIMONSEN licence (see www.ansvarliginternett.no) remains valid during the appeal process.

Review of the copyright act

The Ministry of Culture has recently started the preparations for a full review of the Norwegian Copyright Act by appointing a reference group with a mandate to "consider possible measures which can limit the illegal file sharing and at the same time stimulate increased use of legal services". The reference group will conclude its work by 1 June 2010.

Recent signals from the Ministry indicate that some sort of Graduated Response is being considered. The concern at SIMONSEN is if the proposed procedure will be efficient enough and if the proposed reactions will be effective enough to have a substantial impact on the illegal file sharing taking place in Norway.

In addition, we are concerned if the Ministry will address the other challenges facing the rights holders, namely unclear or insufficient legal basis for:

• Blocking (ref. the Telenor case)
• Access to identity (ref. the Altibox case)
• License to document infringements (ref. the SIMONSEN licence case)
• ISP’s obligation to store information about the link between IP address and the identity of the subscriber to which the IP address has been assigned (ref. lengthy dialogue with the Data Inspectorate).

For more inforamtion, contact:

SIMONSEN Advokatfirma DA
CJ Hambros plass 2 D, NO-0164 Oslo, Norway
PO Box 6641 St Olavs plass, NO-0129 Oslo, Norway
Tel: +47 21 95 55 00
Fax: +47 21 95 55 01
E-mail: post@simonsenlaw.no
Website: www.simonsenlaw.no