Date when decision was rendered: 3.11.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2468; R2003/650

Reference to source

KKO 2004:109.

Decisions of the Supreme Court 2004 II July-December

Avgöranden av Högsta domstolen 2004 II juli-december

Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 698-708

Subject

nulla poena sine lege, intellectual property rights, principle of legality,
nulla poena sine lege, immaterialrätt, legalitetsprincipen,
nulla poena sine lege, immateriaalioikeus, laillisuusperiaate,

Relevant legal provisions

Chapter 36, sections 1 and 2 of the Penal Code; sections 26a and 26d of the Copyright Act; section 8 of the Constitution Act

= strafflagen 36 kapitel 1 § och 2 §; upphovsrättslag 26a§ och 26d §; grundlagen 8 §

= rikoslaki 36 luku 1 § ja 2 §; tekijänoikeuslaki 26a§ ja 26d §; perustuslaki 8 §.

ECHR-7

Abstract

A had produced empty video cassettes and had also imported raw tape used in the manufacture of the cassettes.According to law A should have informed the Finnish Composers' Copyright Society of his activities in order for the society to collect the statutory copyright fees.A had failed to do so, and the question was whether A could be charged with fraud.The Supreme Court discussed, among other things, the definition of fraud in the Penal Code and in particular the interpretation of the words "deceive another or take advantage of an error of another".With regard to the manufacture of video cassettes, the Supreme Court ruled that A had neglected to inform the copyright society, but by doing so he had not led the society believe something which was not true and had therefore not deceived the copyright society.In discussing whether A had taken advantage of an error of the copyright society, the Court referred to the principle of legality which requires a narrow interpretation when considering whether an act constitutes an offence.The Court pointed out that legal terms, unless specifically defined in law, should have the same meaning as in common language usage.In everyday language the word "error" means more than "not being aware".The Court concluded that A had not taken advantage of an error of the copyright society and, as far as the manufacture of video cassettes was concerned, A's actions did not amount to fraud as prescribed in the Penal Code.However, the situation was different with regard to the import of raw tape.A had given false information to the customs authorities by importing the material as cellophane.Import of raw tape for the manufacture of video cassettes requires that a notification is made to the copyright society.The goods will not pass the customs unless the copyright fees have been paid.The Supreme Court concluded that A's actions amounted to fraud as far as the import of the raw tape was concerned.The Court also ordered A to pay the copyright fees for both the video cassettes and the raw tape.Two justices of the Supreme Court were of the opinion that A could be convicted for fraud also with regard to the manufacture of video cassettes.In their view, the principle of legality does not outlaw the gradual clarification of legal provisions through judicial interpretation, provided that the interpretation is consistent with the purpose of the protection sought by penal provisions and that the liability to punishment is reasonably forseeable.A's duty to inform the copyright society was based on the law and formed an essential part of the system for the collection of copyright fees.That fact that the copyright society was not aware of A's activities because A had neglected his duty to inform the society, could be interpreted to the effect that A had taken advantage of an error of the society in order to obtain financial benefit.In the two justices' opinion, this interpretation was not inconsistent with the purpose of the protection sought by the penal provisions.It was not in contradiction with the wording of the provision or common language usage either.In their opinion, the two justices referred to the decisions of the European Court of Human Rights in the cases of C.R. v. the United Kingdom (judgment of 22 November 1995, Publications of the European Court of Human Rights, Series A, Vol. 335), Cantoni v.France (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V) and Ba kaya and Okçuo lu v.Turkey (judgment of 8 July 1999, Reports of Judgments and Decisions 1999-IV).

22.4.2005 / 2.6.2006 / RHANSKI