Switzerland Continues Work On Changes To Online Copyright Rules

Switzerland is considering the “modernisation” of its copyright law to adapt the rights and obligations of various stakeholders to the “realities” of the internet. The country’s generous exception on private use of downloaded material appears to be preserved in the proposed change but internet service providers might feel the pinch.

The revision of the law is ongoing. A working group set up to consider appropriate changes gave its recommendations [pdf, unofficial translation] in December, and in June, the government called for a bill to be drafted by the end of 2015.

In particular, the working group advised that takedown injunctions be applicable to internet service providers in case of copyright infringement.

Other recommendations regard increased transparency of collective rights management organisations, and the development of legal sources for downloading online content.

Private Use in Switzerland

The existing Swiss copyright legislation, the Federal Act on Copyright and Related Rights (English unofficial translation) (CopA) in Chapter 5 (exceptions to copyright), Article 19 (Private use), lists a number of cases where published works may be used for private use. The article defines what private use means.

Article 19 states that “any personal use of a work or use within a circle of persons closely connected to each other, such as relatives or friends,” is considered as private use.

“Any use of a work by a teacher and his class for educational purposes,” and the “copying of a work in enterprises, public administrations, institutions, commissions and similar bodies for internal information or documentation,” are also considered private use.

Article 19 also defines acts that are not permitted outside of the private sphere, such as “the complete or substantial copying of a work obtainable commercially,” and “the copying of musical scores.” Article 19 does not apply to computer programmes.

According to a Swiss official, this exception to copyright in the CopA allows internet users to download any content for private use legally, whatever the source of this downloading might be. The Swiss lawmakers in this matter considered that internet users could not establish with certainty whether a downloading source is legitimate or not, the official said.

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet – for example through a social media platform – or transmitted to third persons, the official said.

Downloading may be permissible under CopA, but uploading of a work onto the internet, which would make the work available to the public, is not, even if such work has been purchased by the user, which bans peer-to-peer activities, according to the official.

The current legislation of 2008 revised the previous legislation of 1992, which already included an exception for private use. The 2008 revision meant to bring Swiss law into conformity with two World Intellectual Property Organization-managed treaties: the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT), both ofwhich Switzerland signed in 1997, and ratified in March 2008.

WCT Article 10 on exceptions and limitations answers to the so-called three-step test, stating that “Contracting Parties may, in their national legislation, provide for limitations or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.”

This provision stems originally from the Berne Convention for the Protection of Literary and Artistic Works. It also appears in the WPPT.

According to the Swiss official, the 2008 revision of CopA includes, for example, the introduction of the prohibition on circumvention of technological protection measures, and an exception for temporary copies of work in certain cases. This concerns copies of content that are stored in the cache memory of a computer when browsing the internet, to facilitate internet browsing, without the users having control on those temporary copies.

Responsibility of ISPs

In the current Swiss legislation it is not clear to what extent an internet service provider must block access to a website, according to the official.

According to the Swiss Federal Intellectual Property Office (IPI), the copyright working group (AGUR12) published its final report in December. A media release [pdf], said that in the working group, artists and representatives of producers, the economy, users and consumers, “discussed for well over a year, the numerous criticisms levelled at copyright in the digital age.”

The AGUR12 “proposed a package of measures in five main areas: improving information for consumers, expanding and thus increasing the attractiveness of legal offers, simplifying the fight against piracy, increasing the efficiency and transparency of the collective rights management organisations, as well as adapting the limitations and exceptions to copyright to recent developments.”

“The issues of most concern to artists and producers, with regard to piracy, are companies who commercially run pirate websites,” the group found. “Such websites unfairly compete with legal offers and avoid being caught through the clever choice of location or technical concealment.”

“The AGUR12 proposes that, in serious cases, access providers situated in Switzerland be required to block access, on the order of the authorities, to web portals featuring obvious illegal sources by means of IP and DNS blocking,” according to the release, referring to internet protocol and domain name system blocking. It also notes that the AGUR12 “disagrees with prosecuting internet users,” and that “downloading from the internet should remain permissible; unauthorised uploading, however, will remain illegal.”

An unofficial translation [pdf] of the recommendations of the AGUR12 states that “downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.” According to some observers, despite being different, the Swiss system has not been detrimental to the market.

According to the IPI, on 6 June, “the Federal Council dealt with the AGUR12 recommendations and mandated the FDJP [Federal Department of Justice and Police] to prepare a draft bill for public consultation by the end of 2015.”

Swiss in the Eyes of US Special 301

Separately, in its Special 301 report 2014 [pdf], the Office of the United States Trade Representative (USTR) said it “continues to have serious concerns regarding Switzerland’s system of online copyright protection and enforcement.” It encouraged Switzerland “to demonstrate its commitment to copyright protection and to combating online piracy by taking steps to ensure that rights holders can protect their rights.”

The report further said USTR “welcomes many aspects of the December 2013 report of the AGUR 12 working group on copyright and urges the Swiss government to move forward expeditiously with measures to appropriately and effectively address copyright piracy in Switzerland.”

“The United States looks forward to working with Swiss authorities in their heightened engagement with respect to this priority issue,” it concluded.

EU Court: ISPs can be Ordered to Block Websites

Meanwhile, surrounding Switzerland, the European Union seems to tightening its grip on ISPs as well.

Article 8 (Sanctions and remedies) (3) of Directive 2001/29/EC of 2001 on the harmonisation of certain aspects of copyright and related rights in the information society states that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”

n March 2014, in the case UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega Filmproduktionsgewellschaft mbH, the Court of Justice of the European Union (CJEU) decided that an internet service provider may be ordered to block its customers’ access to a copyright-infringing website. According to a CJEU press release, the court found that an internet service provider “which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright.”