“The country has become an attractive haven for services heavily engaged in infringing activity,” the IIPA said in its 2013 USTR submission, while referring to the land-locked nation as “a major exporter of pirated content.”
In addition to legislation tipped in favor of service providers, the Swiss also present a fairly unique problem. Thanks to the so-called ‘Logistep Decision’, which was bemoaned in a recent International Creativity and Theft-Prevention Caucus report, the monitoring of file-sharers is effectively outlawed. As a result it’s estimated that more than a third of Swiss Internet users access unlicensed services each month.
With international pressure building the Swiss promised to address the situation and have been doing so via AGUR12, a working group responsible for identifying opportunities to adapt copyright law. In parallel, another working group has been looking at service provider liability.
This month the Federal Council took the groups’ recommendations and mandated the Federal Department of Justice and Police to prepare a draft bill for public consultation by the end of 2015.
What’s on the table
The Federal Council says its aim is to improve the situation for creators without impairing the position of consumers, so there is an element of give-and-take in the proposals for file-sharing, with a focus on balance and “careful consideration” given to data protection issues.
Current download-and-share-with-impunity will be replaced with an acceptance of downloading for personal use, but with uploading specifically outlawed. This means that while downloading a pirated album from a cyberlocker would be legal, doing so using BitTorrent would be illegal due to inherent uploading.
Warnings and notifications
While commercial level infringers can already be dealt with under Swiss law, the proposals seek to lower the bar so that those who flout an upload ban on a smaller but persistent scale can be dealt with. AGUR12 has recommended that this should be achieved by sending warning notices to infringers via their ISPs.
Only when a user fails to get the message should his or her details be handed over to rightsholders for use in civil proceedings. The Federal Council says it likes the idea, but first wants to investigate how the notification process will work, where the thresholds on persistent infringement lie, and under what process identities can be revealed to rightsholders.
Under AGUR12’s recommendations, Internet providers will not only be required to remove infringing content from their platforms, but also prevent that same content from reappearing, a standard that U.S. rightsholders are currently pressuring Google to adopt.
Additionally, in serious cases authorities should be able to order the blocking of “obviously illegal content or sources”. Any new obligations on service providers would be balanced by granting them with exemption from liability.
While Switzerland does not wish to render mere downloading illegal, its effective outlawing of BitTorrent for unlicensed content transfers will put it on a par with most Western countries.
Furthermore, if service providers are forced to take copyrighted content down and keep it down, Switzerland could become the model that the United States has to live up to.