Federal Council adapts copyright law to the digital age

With the revision to the Copyright Act, the Federal Council wants to strengthen the rights and interests of creative artists and the cultural industries by taking a resolute approach to pirated online content. At the same time, it upholds the principle that consumers who take advantage of such illegal offers will not be criminalised. By providing measures that support research and libraries, it also wants to take advantage of the new opportunities that digitalisation has opened up. It approved the corresponding draft act and dispatch at its meeting on 22 November 2017. The draft bill is based on a compromise agreed upon by various stakeholders in a working group set up by the Federal Department of Justice and Police (FDJP).

Today, numerous websites offer films, music, video games and books illegally. Such illegal offers are not only an economic problem for creative artists and producers. The use of content without the consent of the rights holder also infringes the rights of the various stakeholders involved. Curtailing this misuse is therefore for the benefit of everyone, which is why a key concern of the revision to the Copyright Act is to combat piracy.

The anti-piracy measures are aimed not only at respecting the rights of creative artists and remunerating them for their work, but also at allowing producers to better enforce their rights so that they can safeguard their investments. These measures also encourage the creation of diverse legal offers for consumers.

Those who make content available on the internet illegally are the target of the anti-piracy measures. However, consumers who take advantage of illegal offers remain unpunished. This means, for example, that consumers will still be able download a piece of music made available on the internet without the permission of the rights owner for their own private use.

Fighting piracy efficiently

The fight against piracy is to take place where it is most effective, i.e. with hosting providers. Hosting providers are internet service providers who make storage space available to their customers for the purpose of storing information. They are the ones who have the possibility of ensuring that their servers do not host piracy sites and who can quickly remove infringing content. Hosting providers who present a particular risk for copyright infringement must therefore in future ensure that copyright-infringing content, once removed, remains off their servers. They are therefore subject to what is known as a "stay down” obligation. The draft bill also clarifies that the processing of data for the purposes of prosecuting copyright infringement will be permissible. Both of these measures end a long debate on the obligations of providers and therefore create legal certainty for all parties. However, no provision is made in the draft bill for internet blocking.

Benefitting from the opportunities of digitalisation

In addition to the anti-piracy measures, the draft bill also contains various innovative reforms for adapting copyright law to the most recent technological developments. In doing so, the Federal Council would also like to open up the new opportunities of digitalisation to the area of copyright. As a result, researchers and libraries are to be able to use their inventories for specific purposes without the explicit consent of rights owners.

In turn, artists and producers are also to benefit from an improved situation. This is to reduce the imbalance between the increasing online use of works and stagnating proceeds. As a result, copyright protection for performances is to be extended from 50 to 70 years, which will give producers more time to recoup their investments.

Creative artists are also to benefit from broader protection for photography as well as a more efficient management of video-on-demand rights. For consumers, no increase in costs is expected with regard to remuneration for video-on-demand.

The proposed amendments are all part of a compromise agreed upon by the Working Group on the Revision to the Copyright Act (AGUR12) set up by the FDJP. The bill therefore strikes a balance between the various stakeholders.