In the digital age, online piracy is a global phenomenon that poses unique challenges for content creators, consumers, and legislators alike. As the internet erodes geographical boundaries, nations worldwide grapple with regulating digital content to protect intellectual property rights while balancing individual privacy and freedom. Switzerland, known for its picturesque landscapes and robust privacy laws, occupies a distinctive position in this ongoing debate.
Switzerland’s approach to online piracy is fascinating, marked by its intricate legal framework and a robust commitment to personal privacy. Unlike other nations that adopt stringent measures against all forms of piracy, Switzerland takes a unique stance, allowing the downloading of copyrighted materials for personal use. This practice remains unpunished under Swiss law. However, this leniency is balanced by severe penalties for distributing and uploading pirated content, displaying a comprehensive strategy that safeguards copyrights without compromising personal freedoms. This article delves into Switzerland’s legal framework and underscores the crucial role of Internet Service Providers (ISPs) in combating online piracy. Switzerland’s approach is a model of equilibrium and moderation in the digital realm, offering invaluable insights for all stakeholders.
The Legal Framework
Switzerland’s strategy to combat online piracy is underpinned by laws that primarily strive to balance the protection of copyright and the privacy of internet users. The key legislative documents in this context are the Swiss Copyright Act and related regulations, which delineate the rights of copyright holders and the constraints of those rights in the digital era. In April 2020, Switzerland’s Federal Assembly revised the Federal Act on Copyright and Related Rights (CorpA) to tackle online piracy, a significant update in the country’s approach. This revision was also a direct response to concerns the US Trade Representative raised in the annual USTR-2016-Special-301-Report.pdf. This report assesses global intellectual property rights protection and includes a watch list of countries that, according to the US, need to improve their intellectual property rights protection. At the request of the US copyright industry, Switzerland was added to this list in 2016, alongside countries like China, Russia, Ukraine, India, Brazil, and Canada, and it remained on the list until April 2020.
Current Law
The revised law compels hosting providers (i.e., internet service providers (ISPs) or entities that offer storage space on their servers to host pirate sites or actively distribute copyright-infringing data) to ensure that once copyright-infringing content is removed from their server, it must permanently stay down (Article 39d of CorpA). This process must respect both the copyright owner’s rights and the users’ privacy and freedom of expression. However, the Act does not obligate the ISPs to monitor the data they manage proactively or to seek out unlawful activities. This stance aligns with the broader Swiss privacy principles and minimal state intervention.
On the other hand, the Act allows casual pirates or individuals to download copyrighted content from the internet for private use (Article 19). Article 19 (1) (a) specifies private use as “any personal use of a work or use within a circle of persons closely connected, such as relatives or friends.” This implies that it is permissible to download music, e-books, or films and shows and enjoy them either by yourself or with friends and family. Streaming music, shows, or movies from a website, rather than downloading them as files, is also acceptable. Both methods are acceptable whether you play them through an embedded player or directly from your hard drive. However, setting up an open-air cinema in your garden and inviting the public, people you do not know, crosses the line.
The Act introduced a specific exception to copyright protection aimed at facilitating scientific research, addressing previous legal uncertainties concerning the use of Text and Data Mining (TDM) and similar technologies for research under copyright law. The addition of Article 24d in the Copyright Act now explicitly permits technical reproduction actions (such as those carried out through algorithms) for scientific purposes, assuming the works being reproduced were legally obtained. It also allows the storage of these reproductions for archival and backup purposes after the research concludes. As a result, these technical reproduction actions are lawful and exempt from royalties, even without the author’s permission. However, this exception does not apply to the reproduction of computer software.
The Swiss Federal Supreme Court Judgment on “Logistep”
According to a ruling by the Swiss Federal Supreme Court on September 8, 2010 (BGE 136 II 508 ff. [524], cons. 6.3.3, “Logistep”), the recording of IP addresses by rights holders was previously not in compliance with the Swiss Federal Data Protection Act (DPA), rendering it illegal. As a result, any information gathered through this non-compliant data processing was inadmissible in criminal proceedings. In the Logistep decision, the Supreme Court noted that aligning copyright law with modern technologies required legislative action rather than judicial interpretation.
Subsequently, with the introduction of Article 77i in the Swiss Federal Copyright Act (CopA), Swiss lawmakers have established a clear legal framework for processing the personal data of copyright infringers. Article 77i provides that:
- The rights holders whose copyright or related rights are infringed may process personal data insofar as this is essential for the purpose of filing a criminal complaint or reporting a criminal offence, and they may lawfully access the data. They are also permitted to use this data for asserting civil claims to be joined to the criminal proceedings, or for asserting claims after the conclusion of criminal proceedings.
- They must disclose the purpose of the data processing, the type of data processed, and the scope of the data processing.
- They may not link the personal data under paragraph 1 with data collected for other purposes.
According to Article 77i, paragraph 1 of the Swiss Federal Copyright Act (CopA), personal data is any information about an identified or identifiable individual (Article 3, letter a of the DPA). IP addresses, which can be distinctly linked to a specific computer and potentially identify an individual user or group of users, are typically regarded as personal data. The concept of “processing” is interpreted per Article 3, letter e of the DPA. This encompasses handling personal data, including collecting, storing, using, archiving, and disclosing such data.
Comparisons with Other Nations
Switzerland’s approach to regulating online piracy stands in contrast to the practices of many other countries. For instance, in the United States, the Digital Millennium Copyright Act (DMCA) imposes criminal and civil liabilities for the unauthorized distribution, reproduction, and public performance of copyrighted works. This includes stringent measures against downloading and uploading pirated content, with internet service providers (ISPs) playing a crucial role in enforcement through notice and takedown procedures.
The situation in the European Union is somewhat similar to that in the US, with the EU Copyright Directive providing a framework that also includes harsh penalties for piracy and mandates proactive roles for ISPs. However, recent updates to EU legislation suggest a move towards more stringent measures to protect copyright holders, including the controversial Article 17, which requires platforms to prevent copyright infringement before it occurs.
By contrast, Switzerland’s more balanced approach does not criminalize downloading copyrighted content for personal use, focusing instead on the illegal distribution and uploading of such material. This reflects a broader commitment to personal privacy and the individual’s rights, a more lenient stance than the US and EU perspectives.
Conclusion
Switzerland’s method of handling online piracy illustrates a deliberate attempt to balance copyright enforcement with individual privacy rights. This nuanced approach respects the rights of copyright holders while recognizing the practical realities of digital consumption and the importance of privacy. As technology continues to evolve and the global landscape of digital content becomes more complex, Switzerland may find its policies both challenged and emulated, depending on international trends and pressures.
Call to Action
What are your thoughts on Switzerland’s approach to online piracy? Should there be more stringent measures to protect copyright, or does the current system adequately balance the various interests involved? Join the conversation in the comments below and share your views on how Switzerland could navigate the challenges of digital content in the future.
References:
SR 231.1 – Federal Act of 9 October 1992 on Copy… | Fedlex (admin.ch)
USTR-2016-Special-301-Report.pdf
“Logistep Case” 136 II 508 (bger.ch)
Directive – 2019/790 – EN – dsm – EUR-Lex (europa.eu)
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