Under Swiss Copyright Reform, Private Sharing And Downloads From Unauthorized Sources Would Still Be Legal

from the truly-remarkable dept

Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:
Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.
Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:
In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.
The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":
Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.
Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.
And blocking:
On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.
AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:
An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.
As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Filed Under: copyright, copyright reform, downloading, intermediary liability, isps, legality, special 301, switzerland

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  1. identicon
    Anonymous Coward, 4 Oct 2014 @ 1:50pm

    Re: Re: Re: Re: Re: don't understand

    A court wouldn't just look at "what's in this file" but also "how did you get this file".

    But "how I got the file" does not relate to the file at all, but to my actions. So it is not the file, that is "illegal", but, potentially, my actions - you can make actions illegal, not things (you would not be charged for heroin, but for possessing it, you would not be charged for a file, but for illegally obtaining it).

    Still - you cannot claim "illegality" of one file and not the other, if you cannot tell them apart. My action dos not leave a mark on the file.

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