Collaboration and compromise: the amended Swiss Copyright Act

A major revision to the Swiss Federal Act on Copyright and Related Rights (Copyright Act) entered into force on April 1, 2020. The amendment constitutes the outcome of eight years of discussions and negotiations in expert groups and different branches of the government, illustrating the vastly diverging interests at stake.

The changes to the law find their roots in the Swiss Federal Council’s (executive branch) intent to fight online piracy “without criminalising the users”, to adapt the existing statute to technological developments and to “accommodate further concerns of various stakeholders”.

The changes include the following.

Fighting online piracy

As Switzerland is not an EU member state, the country isn’t bound by the recently enacted directive (EU) 2019/790 on copyright in the Digital Single Market (DSM directive).

The amended Copyright Act foresees a new provision on the duty of hosting providers related to copyright infringement, but this is not as far-reaching as the new article 17 of the DSM directive. Under the new provision, hosting providers have the general duty to prevent a protected work from being made publicly available.

However, unlike in the DSM directive, this duty exists only if: (1) the work was already made available in the past on the same hosting service; (2) the hosting provider was made aware of the copyright infringement; and (3) the hosting service has “created a particular risk for such infringements, notably through a technical solution or an economic orientation that favours infringement”.

“It is now explicitly lawful for right owners to process personal data to the extent necessary for filing a criminal complaint for copyright infringement.”

In practice, a hosting provider that is compliant with article 17 of the DSM directive doesn’t need to worry about this provision, which is less strict towards hosting providers than its EU counterpart.

It’s noteworthy that the download of copyright-protected works for private use has always been legal under Swiss copyright law; this principle remains unchanged under the amended act. Downloading is lawful, irrespective of whether the source of the download has or has not been authorised by the right owner.

Against this background, right owners used to concentrate their enforcement efforts on the unauthorised upload of works, in particular in peer-to-peer networks. In 2010, the Swiss Federal Supreme Court put an end to this practice, judging that the collection of IP addresses on peer-to-peer networks, unbeknown to the users, for the purposes of filing a criminal complaint was illegal under data protection law.

The amended statute has corrected this unsatisfactory situation. It is now explicitly lawful for right owners to process personal data to the extent necessary for filing a criminal complaint for copyright infringement.

Extended collective licensing

The extended collective licence scheme is an entirely new aspect of Swiss copyright law and is modelled on existing statutory rules in Denmark, Finland, Iceland, Norway and Sweden.

Under the new law, collective rights management societies can authorise the mass use of copyright-protected works without the individual consent of the right owners and even in the name of right owners who are not members of the relevant societies.

This broad power conferred to collecting societies is limited by several prerequisites. In particular, the collecting society must be representative of a substantial number of right owners, the licensed use must not impair the normal exploitation of the works and the licences granted must be made public. In addition, right owners have the right to opt out at any time with immediate effect.

Protection of a photograph without individual character

The Copyright Act defines “works” as “creations of the mind that have an individual character”. The amended act now extends this definition to all “photographic reproductions and reproductions of three-dimensional objects created by similar methods, irrespective of any individual character”.

However, the copyright term for non-individual photographs is shorter, lasting only 50 years from publication or creation (instead of the ordinary 70 years post mortem auctoris term).

The new rule doesn’t relate only to photographs created after April 1, 2020, but to all photographs, even those created before the entry into force of the amended act.

Data- and text-mining exception

Prior to the entry into force of the new law, there was no exception to copyright infringement for experimental or research use.

The new law now provides an explicit rule allowing the reproduction (but no other uses, such as making available or broadcasting) of protected works if the copy is made “for the purpose of scientific research”, if the reproduction is the result of a technical process and if the user has lawfully obtained access to the work.

This exception is particularly intended to exempt methods of data- and text-mining for non-commercial purposes. It makes the copying of works in this limited framework both lawful and free, as the law does not foresee any remuneration payable to the authors or the collecting societies.

Orphan works

Until now, Swiss law had only a narrow exception for the use of orphan works, namely in connection with archives of broadcasters, which was limited to works created in Switzerland.

The new law provides a long-awaited and broader exception, allowing the use of all orphan works that are accessible in public libraries, museums, collections and archives and that were produced, copied or made available in Switzerland.

The permitted scope of use is broader than article 6 of the Orphan Works directive (2012/28/EU) and encompasses all kinds of possible uses of the works.

The use of orphan works gives rise to remuneration to be paid to authorised collecting societies. If the user intends to make use of a large number of works (however, no clear threshold is defined in the law), the provisions on extended collective licences are applicable.

The new law also provides a clear answer to the previously unresolved question of how the remuneration paid for the use of orphan works shall be distributed. If the author doesn’t claim his or her remuneration for ten years, the remuneration shall be used for “social welfare and cultural promotion” purposes.

Video-on-demand

The new law provides for a non-assignable and non-waivable right to remuneration of authors and performers for the making available of audio-visual works online. Only authorised collecting societies can claim the corresponding payment from the operators of video-on-demand platforms. The scope of the provision is, however, rather limited.

First, it does not apply to the music contained in the audio-visual works, nor to a series of specific works as set out in the statute (in particular, advertisements, promotional movies, computer games and “works made for hire by broadcasting societies or other journalistic works made for hire”).

In addition, it applies only to audio-visual works made by persons and companies outside Switzerland if the law of the relevant jurisdiction also contains a similar provision. Whether this provision will actually solve the problems it purports to solve or whether it will create new difficulties of interpretation remains to be seen.

Extensions

The amended law extends the term of protection of related rights (also referred to as neighbouring rights) of performing artists and producers of phonograms and audio-visual fixations to 70 years from the first performance or publication, instead of 50 years. This amendment was mainly included to harmonise Swiss law with the term of protection in the EU.

Exceptions

The amended Copyright Act allows “public and publicly accessible libraries, educational institutions, museums, collections and archives” to make available short excerpts of works from their inventory. This exception is also applicable to musical and other acoustic works, as well as audio-visual works.

In compliance with obligations under the Berne Convention, the relevant provision explicitly insists that the use of this exception must not impair the normal exploitation of the work. In particular, figurative, audio and audio-visual works can be made available only in low resolution or in a small format.

Rejected proposals

In addition to the above amendments, further legislative changes were contemplated, but eventually rejected.

Among these, and contrary to early proposals, the new law doesn’t change the position of internet access providers who are still under no obligation to prevent Swiss customers from accessing infringing sources online (as confirmed by the Federal Supreme Court in BGE 145 III 72).

The Swiss legislature also rejected a proposal to prevent users of time-shift television from fast-forwarding advertisement blocks.

Essentially, the amendment reflects a minimal compromise that was acceptable to most stakeholders. The cost of accommodating so many different interests is that the amendments read as a series of isolated measures to address specific issues, instead of being a systematic approach to copyright law.

Peter Ling is a partner at Lenz & Staehelin. He focuses his practice on IP, unfair competition and life sciences matters. He can be contacted at:  peter.ling@lenzstaehelin.com