To strengthen the position of creative artists and cultural industries, the fight against online piracy is being made more efficient. Under the revised Copyright Act, hosting providers that present a particular risk for copyright infringement must ensure that copyright-infringing content that has already been removed once remains permanently removed. This measure is specifically targeted towards piracy platforms. In addition, the law also clarifies that data processing is permissible for the criminal prosecution of copyright infringement. Nothing changes for consumers of illegal content. They are allowed, for example, to continue downloading music which was published online without the permission of the rights holder for private use. The position of creative artists is strengthened further due to greater protection for photographs, an extended term of protection for performers and producers and more efficient management of video-on-demand rights.
In the interest of facilitating access to works, the revised Copyright Act will contain an index privilege, an exception for remuneration for scientific purposes, a regulation on the use of orphan works and the introduction of extended collective licences.
An improved tariff approval procedure and electronic exchange of information between users and collective rights management organisations aim to make collective rights management more efficient.
Along with the revision, Parliament has also approved two agreements of the World Intellectual Property Organization (WIPO). The Beijing Treaty ensures that, at international level and just as musicians already can, actors can make a case against any unauthorised use of their performances. The Marrakesh Treaty improves access to works for the visually impaired by legally authorising the production and cross-border exchange of copies of works in a form which is accessible to them.
The new ‘stay down’ obligation may lead to the use of upload filters. However, it primarily aims to ensure that no piracy sites are operated in Switzerland. The stay down obligation only applies for hosting providers which have a business model that encourages piracy and which refuse to give up this damaging business model.
Another amendment concerns the criminal prosecution of copyright infringements. The revised law clarifies that rights holders are authorised to log uploaders’ IP addresses in order to submit these to the criminal justice authority as part of a criminal complaint. Downloading films or music for private use cannot be criminally prosecuted. Therefore, in this case, the recording of IP addresses is not permitted.
Social media will continue to work. Users of Facebook, Instagram and other social media platforms can continue to upload and share their own texts and images. To upload content owned by others, users need the author’s permission. For sharing content owned by others, as before, caution is advised – as long as the sharing features a technical link that is dependent on the original content, the author's permission is not required. This is the case, for example, when Facebook posts are shared on the platform. For ‘reposting’, for example, sharing a third party’s photo on Instagram, the content is technically re-uploaded. Therefore, the author’s consent is required in this case. These rules already apply for photographs that are works of art. They now apply for all photographs.
No, it will not make everything more expensive. The blank media levy, which makes it possible to provide remuneration for the copying of protected content for private use, is nothing new. The revision does not change this. The blank media levy is not becoming more expensive due to the fact that all photos will now be protected and that, for example, back-up copies will be made of holiday photos.
Libraries, schools and universities also do not face any new obligations to pay remuneration. In fact, the revision even provides for tariff benefits for libraries.
No, there are actually two new improved arrangements for the use of images and other protected works. Up until now, protected works whose owners were unknown or could not be traced could not be used because people were unable to obtain permission from the rights holders. Now, it is possible to pay a kind of insurance premium to the collective rights management organisations for the use of such works, as a means of ‘insuring’ oneself against any claims for compensation made by the rights holder. However, if the rights holder subsequently makes themselves known, they may only get compensation for the use from the collective rights management organisation. The user does not have to pay any other remuneration to the rights holder.
In the past, it could be very difficult to obtain permission to use a large number of images and other protected works. It is now possible, under certain conditions, to be granted permission by the collective rights management organisation to use a large number of works with only one request (known as a collective licence). The rights holders receive remuneration for this.
Works whose copyright protection has expired will remain free to use. For example, the new broader protection for photographs recognises the photograph itself, but not works depicted on it.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"