31 countries offer ‘site blocking’ in cases of copyright infringement, but Switzerland is not one of them

Kat blocking access to the internet

The IPKat is delighted to host the following opinion by former GuestKat Mirko Brüß on a very recent decision of the Swiss top court concerning the availability or - rather - unavailability of blocking injunctions in that country.

Here's what Mirko writes: 

"The Federal Supreme Court of Switzerland just said “no” to a an application of a Swiss movie studio which had requested local ISP Swisscom to block its customers from accessing an infringing website (case No. 4A_433/2018).

Readers of this blog are familiar with website blocking as one of the many tools right owners rely on when trying to combat online copyright infringement. Ever since the CJEU’s UPC Telekabel decision [here], it is clear that an ISP (like Swisscom) can be required to block access by its customers to a website which infringes copyright. 

One of the main reasons for this is that ISPs are considered an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of the InfoSoc Directive. In its 2017 Filmspeler judgment [here], the CJEU confirmed that users who access (=stream, not necessarily download) content that is available online without the right owners’ consent, infringe copyright, and that the acts of reproduction are not covered by the exemption in Art. 5(1) of the InfoSoc Directive.

However, Switzerland is not part of the EU, which leads to a very different assessment of basically the same facts in the case at hand. 

The Swiss Court agreed with the claimant that the works in question were illegally made available on several websites that were (only) available in Italian. Neither the uploaders of the files nor the operators of the illegal websites were known. Thus, the Court had to assess whether Swisscom could be held liable or accountable (see Martin Husovec’s excellent work for more details) for third parties infringements. 

The Federal Supreme Court answered this in the negative. Swiss law does not provide specific rules for the liability of intermediaries in copyright cases; the Court therefore examined Art. 50 of the Swiss “Obligationenrecht”, which regulates the liability of more than one party in tort and is generally applied to civil (and copyright) cases as well. 

Using the standards set forth in Art. 50, the Court looked for an abetting or facilitation of infringement, which exists if the third party (here: Swisscom) encourages, promotes or facilitates the infringement of an intellectual property right. So the relevant question for the present case was if Swisscom’s users infringe copyright by watching movies from an illegal source. 

This is where Swiss copyright law is dramatically different from the laws in EU - and many other countries. A private copying exception exists in most countries, as provided for in Art. 5 of the InfoSoc Directive. In Switzerland, this exception, which is not based on Art. 5, is governed by Art. 19 of the Swiss Copyright Code (Urheberrechtsgesetz, URG). Astonishingly, the Swiss judges found that watching movies from illegal sources does not constitute a copyright infringement under Swiss law, because such activities are covered by “private use” (translation from German is mine): 

In doing so, the lower Court came to the conclusion, without infringing federal law, that the activity of the user who accesses the websites in dispute and consumes the films in dispute is covered by the personal use defence pursuant to Art. 19 para. 1 lit. a URG, irrespective of whether it is a legally or illegally accessible source. 

Indeed, this issue has been discussed in Swiss politics for years. In 2007, a change of Art. 19 was proposed, adding a clarification against the use of illegal sources for “private copies” (again, translation from German is mine): 

Copies of works in accordance with the provisions for personal use may not be made using copies of works that were obviously illegally produced or made available. 

But this proposal was not adopted, which the Court states confirms its view that 

according to Art. 19 URG, if copyright works are downloaded from the Internet for personal use, no infringement by the user exists even if the relevant (stored) copy template has been made illegally accessible on the Internet. 

As a result of this, the Federal Supreme Court found no illegal activity on behalf of Swisscom’s customers to which Swisscom had (or could have) contributed. It remained undisputed between the parties that the operators of the infringing website and the uploaders of the movies – while engaging in copyright infringements – had not done so using Swisscom’s services. The same was true for the hosting provider where the copies of the movies were stored.

With no illegal act which Swisscom encouraged, promoted or facilitated, the court rejected the application. Since the Federal Supreme Court is the highest civil court in Switzerland, right owners hoping for a change for the better are once again left depending on the legislator, with little hope. 

Katblocking

Indeed, site blocking was introduced into Swiss law just in 2018, with the arrival of Art. 86 of the “Geldspielgesetz, BGS” which regulates (online) gambling and provides for site blocking of websites that offer gambling which is not approved in Switzerland. Other provisions in Swiss law now offer site blocking in cases of illegal pornography (Art. 46a Fernmeldegesetz, FMG). 

However, a similar proposal for a change of Swiss Copyright law was once again dropped in 2018. It remains to be seen if the latest decision by the Federal Supreme Court will lead to renewed efforts of the legislators to make site blocking available to copyright owners in Switzerland. 

The MPAA has called Switzerland’s copyright law “wholly inadequate, lacking crucial mechanisms needed for enforcement in the digital era”. This former GuestKat agrees with this assessment. As the CJEU stated in Filmspeler, streaming movies from illegal sources adversely “affects the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder, because that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders”. Indeed, why should users who know they are by law “allowed to” watch movies from illegal sources for free ever consider switching to legitimate providers? It is also questionable how the current legal landscape in Switzerland is in line with the obligations set forth in Articles 41-49 of the TRIPS agreement, which requires member states to ensure “effective action against any act of infringement of intellectual property rights”."