On 6 December 2013, the working group on copyright “AGUR12”, appointed by Federal Councillor Simonetta Sommaruga and composed of artists, producers, users, consumers and administration representatives, proposed a series of recommendations to address the challenges of copyright in the “digital age” (the final report is available in German and French on http://www.admin.ch/ aktuell/00089/index.html?lang=fr&msg-id=51262). Recommendations focus on the following issues: better consumer information, increasing efficiency and transparency of the collecting societies, adapting copyright exceptions and improving the fight against piracy. The last of these being the most detailed, we will focus on the package of duties proposed for the various internet players.
As provided in the current Swiss legislation, downloading copyrighted work from unauthorised, hence illicit sources should continue to be permitted, whereas unauthorised uploading will remain illicit.
Many websites are a source of copyright infringement for all artistic fields such as music, films and software. According to AGUR12’s recommendations, host providers should have “take down” and “stay down” obligations. Concretely, the host provider would have to withdraw any content illegally uploaded on its server upon request of the rights owner or a competent authority (take down obligation). Where the host provider has a business model that favours copyright infringement, additional measures would have to be taken in order to (i) prevent similar uploads in the future and (ii) monitor the links accessible within its services to identify copyrighted works and infringing material and take appropriate measures (stay down obligation).
As for Internet Access Providers (IAP) established in Switzerland, AGUR12 recommends that they block IP and DNS addresses in “serious cases” (that must still be defined) and, upon order of the competent authority, restrict access to any portal offering copyright protected work.
One of the difficulties in case of copyright infringement on the internet is to identify the source in order to bring a civil court action. The rights owners are often forced to initiate criminal proceedings in order to collect sufficient information supporting a civil claim.
To facilitate civil proceedings, AGUR12 proposes measures to disclose the source of the infringement. Upon report of the rights owner or the competent authority, IAP should send an information message to their subscribers who are using peer-to-peer networks and infringing copyright by allowing content to be uploaded. Upon receipt of this message, the user would be forced to take appropriate measures to prevent uploading. Failing to do so, not only could the user be held jointly liable, but the IAP would be compelled to divulge the source by providing the rights owner with the identity of its subscriber and its connection data (dynamic and static IP addresses). Such measures would however require enacting provisions in order to lift telecommunications secrecy and regulate the retention of IP addresses required to identify the subscriber.
Finally, the recommendations establish liability shields for providers (IAP, operators of search engines, host providers), in line with EU regulation (Directive/2000/31/EC, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:32000L0031:en:HTML). The proposed legal provisions are intended to ensure that the provider is not liable for the information stored if it does not have actual knowledge of illegal activity or information or if, upon having such knowledge, it acts immediately to remove or to disable access to the information.
These recommendations are the result of a consensus reached between AGUR12’s members. It still remains to be seen how the Federal Council will adapt the current legislation on copyright by implementing the proposed measures into concrete provisions, which should then be submitted to the Federal Parliament.