Significant Revisions to the Swiss Copyright Act

The typical mischievous mood of April Fool's Day is absent this year, indeed even Google has decided to skip sharing jokes today to pay respect to those who are fighting COVID-19. In this current difficult and in so many ways extraordinary situation, it may only be a sideshow that today is also the date of entry into force of the arguably most important amendment of the Swiss Copyright Act since 1992 (the Act is available in English here, though at the time of writing the English translation does not yet reflect the amendments; these can be found here in German).

The bill is the result of eight years' efforts by a group of experts, the Swiss government and the legislature. During this time, the entire project seemed more than once on the brink of being abandoned for good. The first draft, published in 2013, gave rise to over 1200 comments from interest groups and the general public, showing the strong – and vastly diverging – interests at stake.

The resulting compromise tries to accommodate many of these interests, but does so at the cost of a systematic approach to copyright law. Not surprisingly, therefore, the bill is a conglomeration of specific measures to address specific issues and lacks a general narrative of where Swiss copyright law is heading – or should be heading. This post will summarize only some of the most important aspects in (fully subjective) order of decreasing importance. 

Kat working from home, day #1

Extended Collective Licensing

The new extended collective licence scheme (ECL) is likely the most interesting aspect of the new law. The law is modelled on existing schemes in Denmark, Finland, Iceland, Norway and Sweden. Under the new law, collective rights management societies can authorize the mass use of copyrighted works without individual consent of the right holders and even in the name of right holders 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 holders, the licensed use must not impair the normal exploitation of the works and the licenses granted must be made public. In addition, right holders have the right to opt out at any time with immediate effect. 

Stay-down / Keep-down Duties for Hosting Providers

Switzerland is not a member state of the EU and is not bound by the DSM Directive, in particular its Article 17 (see Eleonora Rosati's Katpost here). The Swiss legislature has enacted a less far-reaching (and shorter) provision on the duty of hosting providers related to copyright infringement. Under the new Article 39d of the Copyright Act, hosting providers have the duty to prevent a protected work from being made publicly available again (i.e. tolerating the first upload is not unlawful).

Somewhat differently from the DSM Directive, this duty only kicks in if: (1) the work was already made available in the past on the same hosting service; (2) the 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".

Note that the download of copyrighted works remains perfectly legal under the amended Act, irrespective of whether the source of the download has or has not been authorized by the right holder. 

Protection of a Photograph without Individual Character

Until now, only "creations of the mind that have an individual character" qualified as protected works under the Swiss Copyright Act. The amended Act extends the protection to all "photographic reproductions and reproductions of three-dimensional objects created by similar methods, irrespective of any individual character". The copyright term for non-individual photographs is, however, shorter, lasting only 50 years from publication or creation (instead of the ordinary 70 years post mortem auctoris term). 

Data 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 that allows the copying (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 copying is the result of a technical process and if the user has lawfully obtained access to the works. This exception is particularly intended to exempt methods of datamining for non-commercial purposes. It makes the copying of works in this limited framework both lawful and free, as the law does not foresee a special remuneration payable to the authors or the collecting societies. 

Kat working from home, day #13

New Rules for Orphan Works

Until now, Swiss law had only a narrow exception for the use orphan works, namely in connection with archives of broadcasters and restricted 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.

As such, the scope of permitted use is even broader than what is foreseen by 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 authorized collecting societies. If the user intends to make use of a large number works (no threshold is defined in the law), the provisions on extended collective licenses are applicable. 

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 audiovisual works (online). Only authorized 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 audiovisual 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 only applies to audiovisual works made by persons and companies outside of Switzerland if the law of the relevant jurisdiction also contains a similar provision. This Kat is afraid that this provision may be more likely to cause difficulties of what is covered (what is a "promotional movie"?) than solve the problem which it purports to address.