Making Swiss Copyright law fit for the digital age:
The revised Swiss Copyright Act (CopA) came into force on 1 April 2020.
The main changes are:
- Introduction of a stay down obligation for host providers, which create a particular risk of copyright infringements;
- New copyright for non-original photographs;
- New mandatory collective remuneration for the making available of audiovisual works;
- Introduction of extended collective licenses;
- Introduction of new copyright exceptions, such as an exception for scientific research
New stay-down provision for certain host providers
The revised Swiss Copyright Act introduces an obligation for host providers, which create a particular risk of copyright infringements, to make sure infringing content does not reappear illegally on their platforms (so called stay-down obligation, article 39d rev CopA). The aim of the new provision is to make the fight against piracy more efficient. The affected host providers are required to implement some form of monitoring.
The revised Act further improves the enforcement of copyright infringements by clarifying that IP addresses can be recorded and submitted to the responsible authorities as part of a criminal complaint (article 77i rev CopA). When copyright protected works are infringed for example via peer-to-peer networks, right holders are usually unaware of who is behind the infringement. The only information they have at hand is the IP address via which the infringement was committed. Up to now, it was not possible to process IP addresses for copyright purposes due to the Logistep decision of the Swiss Supreme Court (BGE 136 II 508). The new provision now allows such processing and provides clarity and legal certainty in this regard.
New rules regarding Video on Demand
The revised Act introduces a new remuneration for authors and performers with regard to video on demand services (article 13a and article 35 rev CopA). Creative artists heavily criticized what they refer to as the “value gap”, the mismatch between the strong growth in online streaming platforms and the remuneration paid to them. Under the revised Copyright Act providers of video on demand platforms have to pay fees to artists for providing access to their content. The remuneration will be mandatorily collected by collective societies.
Extended collective licensing system
The revised Copyright Act introduces a new system of extended collective licenses. The purpose of these extended collective licenses is to create more flexibility by allowing mass uses in situations, where such uses are in the public interest and do not prejudice the normal exploitation of the concerned works (article 43a rev CopA).
Collecting societies have the right to conclude license agreements in areas where they represent a big portion of the concerned right holders. These license agreements also extend to right holders, which are not represented by the collecting societies. This is why the licenses are called “extended” licenses. However, right holders have the possibility to opt out of the extended collective licensing system.
New copyright exceptions
There are also changes to the copyright exceptions. The revised Copyright Act updates the orphan works exception to cover all types of works (article 22b rev CopA) and expands the exception for the benefit of people with disabilities (article 24c rev CopA). Moreover, the new Act allows libraries, museums and archives to make short extracts of their holdings available to the public as long as this does not prejudice the normal exploitation of the concerned works (article 24e rev CopA). Moreover, the Act introduces a new exception for the purpose of scientific research (articles 24d rev CopA). However, this new exception is no general exception for scientific research, but only allows copies of works, which are the result of data and text mining for scientific purposes. The exception requires that the user has lawful access to the concerned works.
As before, there will be no penalties for users who stream or download pirated content for their private use even if the content is downloaded or streamed from an illegal source (article 19 CopA).
Protection of non-original photographs
A fundamental change concerns the protection of photographs. Under the revised Act, photographs of three-dimensional objects will be protected as works even if they are not original (article 2 para 3bis rev CopA). Up to now, photographs were only protected as works, if they had original character. However, the threshold for originality established by the courts was rather high. Under the new Act, all photographs, including snapshots, family or holiday pictures, of three-dimensional objects will enjoy copyright protection. Protection will last for 50 years since the making of the non-original photograph (article 29 para 2 lit. abis rev CopA). The use of photographs such as for example the upload to a website should now always be carefully evaluated beforehand to avoid copyright liability.
What it means for you
For artists and producers the changes will enable a more efficient enforcement of their rights with more effective measures to take action against illegally uploaded content and prosecution of infringers.
For host providers the stay down obligation creates the responsibility to ensure that infringing content they have been notified about actually stays down. While theoretically, there is still no obligation to preventively check content for copyright infringement, the new regulation creates a factual responsibility to screen content, to ensure the content has not been illegally uploaded before. Hosting providers have to implement all such measures that are technically and economically feasible.