Revision of Swiss Copyright Law Raises Moderate Protest 20/03/2008 by Catherine Saez, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)By Catherine Saez Switzerland has adopted a new copyright law strengthening the rights of performers, producers and copyright owners online that appears less stringent than similar legislation adopted in some peer countries, according to observers. Nevertheless, some activists still see the Swiss law as jeopardising users’ rights. On 5 October, the Federal Parliament widely approved the revision of the copyright act. The new law aims at transposing the copyrights enjoyed by authors and creators in the digital age. As such, it prohibits the act of circumvention of access control technologies, called digital rights management (DRM), as well as dissemination of the tools and technologies that would enable circumvention. This new law ratifies two World Intellectual Property Organization (WIPO) treaties adopted in December 1996: the WIPO Copyright Treaty, protecting the rights of authors in their literary and artistic works, and the WIPO Performances and Phonograms Treaty, protecting certain rights of performers of literary or artistic works and of producers. It also makes necessary adjustments induced by the digital environment and so goes beyond the WIPO treaties, according to the Swiss Federal Institute of Intellectual Property. The institute launched a website dedicated to the revision of the law and said it held a wide consultation on it before adoption. Some Concerns Raised However, this revision raised concerns among some Internet users. One section of the law is seen by some as problematic as it is considered ambiguous and could interfere with users’ rights. It would allow the circumvention of DRM for legal purposes such as copies for private use, and at the same time forbid the sale or distribution of mechanisms allowing the circumvention of these DRM. In other words, the strict application of the law could possibly ban all attempts at breaking DRM, even for legal copies, according to Florian Bösch, a web developer and author of an ill-fated petition that was aimed at invalidating the law with a referendum. Detractors have compared the new law with the 1998 US Digital Millennium Copyright Act (DMCA), which criminalises production and dissemination of technology, devices, or services used to circumvent measures that control access to copyrighted works and criminalises the act of circumventing an access control, even when there is no infringement of copyright itself, according to online encyclopaedia Wikipedia. The DMCA is generally seen as having been favourable to copyright holders. Worries Downplayed Vincent Salvadé, a Swiss-based lawyer and author of a paper on DRMs published in March in the online journal Jusletter, said he does not expect significant problems with the new law. He said the law refers to “efficient technical measures” that could effectively prevent or reduce illegal copies. In his opinion, that would exclude measures limiting the number of copies one can make on a personal portable audio device but would be applicable to a system preventing the posting of a work on a peer-to-peer site. Consequently, that softens the section of the revised law (Section 3 of Article 39a) that is in question, he said. As some of the DRM components will not be considered efficient, the marketing of devices or services helping circumvent them will not be forbidden. In his view, the grounds for the petition are thus unfounded. Nevertheless, Salvadé said the ability to make private copies is an exception – rather than a right – to the copyright law, which is aimed at protecting authors, not users, he said. Technically, the law could be interpreted both ways. In his opinion, the circumvention of DRM will be allowed for legal copies (private copies or copies allowed by contract). “If somebody finds a way to circumvent DRM for a private copy, then it will not be condemnable,” he told Intellectual Property Watch. However, he acknowledged that the hypothesis that the law could be used to forbid all kind of circumvention of technical measures cannot be totally excluded. For Norbert Bollow, president of the Swiss Internet User Group, who did not support the petition, the referendum campaign was not necessary. “In lobbying the national Parliament we succeeded to convince the politicians to take our concerns into account,” he said. He also felt that undoing the law with a referendum would start the political process again with the risk that the music and film industry might represent their interests even more effectively the next time. “The problem is much smaller than in many other countries,” Bollow said, adding that the revised Swiss law will not prevent the open source and free software movement from succeeding, though the new version of the law is still prejudicial to the interests of consumers. Question of Fairness However, Bösch is questioning the fairness of the law. “The core premise of the law [compared to the DMCA] is the same, to make it harder for the consumer, to prevent him from circumventing technical protection measures,” he said. “It is a unilateral advantage to the content industry at a cost to be carried by the consumer.” Although DRMs are intended to protect the copyright holders, in reality content aggregators with a licence to use the material most prominently apply DRMs, according to Bösch. Salvadé agreed that the new law serves the interest of content providers but said they must protect their services. According to the Swiss Federal Institute of Intellectual Property, “the legislator was aware of the potential impact of section 3 on the ability to exercise permitted uses. Consequently, it established a supervisory board that will actively follow the developments in this field and regularly report to the Federal Council. Should the board come to the conclusion that the interests of the users and consumers are impaired, it will propose the necessary countermeasures. If necessary this will include a proposition for a further amendment of the copyright act” he said. The Swiss society for musical work authors’ rights (SUISA), which was consulted during the process leading to the modification of the law, has supported the goal that the freedom of private copy be maintained, a SUISA official said. SUISA has neither comments nor an official position on the new law, he said. The petition initiated in December 2007 by Bösch aimed at gathering 50,000 signatures. The Swiss legislation allows citizens who do not agree with a law from the federal parliament to demand a referendum. If 50,000 signatures are collected within 100 days of the law, the legislation must be submitted to a popular vote. This vote is called an optional referendum. However, the petition only collected 803 signatures. Bösch cited four reasons: the late start of the petition, lack of political support or support from trade or consumer organisations, lack of experience of the petitioners, and the technical side of the problem which made the issue difficult to explain to the public. The Swiss Federal Council has to decide on the date when the new law will come into effect: 1 July 2008 has been proposed. Catherine Saez may be reached at email@example.com. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related "Revision of Swiss Copyright Law Raises Moderate Protest" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.