Submitted text
In August 2012, the Federal Department of Justice and Police appointed a politically broadly composed working group on copyright (Agur 12). This working group, headed by IPI Director Roland Grossenbacher, published a comprehensive report, including a catalog of concrete recommendations, on schedule and without dissenting votes in December 2013. Neither the FDJP nor the Federal Council as a whole have yet commented on it.
The Federal Council is invited to answer the following questions:
1. what is its assessment of the content of the recommendations made by the working group?
2. what schedule does he foresee for the upcoming steps?
3. which of the measures, in its view, require legislative changes, and which, in its view, can be implemented in other appropriate ways?
4. how it integrates the findings of the Seco-initiated so-called Roundtable on copyright issues, whose activities were suspended at the beginning of 2014 with reference to the implementation of the measures recommended by Agur 12?
Justification
The Agur 12 report leaves no room for doubt: There is a recognized, urgent need for action in Switzerland to adapt copyright law and related enforcement tools in the Internet age.
In the Swiss parliament, repeated motions have been submitted calling for legal protection of the interests of rights holders on the Internet as well (e.g., Interpellation Stöckli 12.4202, “Swisscom. Umgang mit urheberrechtlich geschützten Inhalten”; Postulat Fluri 12.4238, “Volkswirtschaftlicher Schaden durch illegale Angebote auf Internet”).
In the follow-up to the Logistep case (BGE 136 II 508), the Federal Supreme Court also pointed out as early as 2010 that it was up to the legislature to take action: “In conclusion, it” – the Federal Supreme Court – “stated that the current situation appeared unsatisfactory, at least with regard to copyright protection, but that it was up to the legislature to take the necessary measures to ensure copyright protection adapted to new technologies” (Annual Report of the Federal Supreme Court 2010, p. 17, available at http://www.bger.ch/gb2010_bger_d.pdf).
For its part, at the request of the Switzerland‑U.S. Cooperation Forum on Trade and Investment, Seco began work on Internet law enforcement in 2011 at a so-called roundtable and set up a working group. This working group suspended its exploratory work at the end of 2013 / beginning of 2014 with reference to Agur 12 and an expected assessment by the Federal Council. The Roundtable also pointed out that the creation of a civil law instrument to supplement the criminal law procedural options was indicated (Report “Roundtable on Copyright on the Internet” of January 23, 2014, p. 9f., available at http://www.seco.admin.ch/themen/00513/00561/00566/index.html?lang=de).
Statement of the Federal Council
1. the recommendations of agur 12 provide a valuable basis for the follow-up work. However, the degree of concretization of the individual proposals varies greatly; they range from mere suggestions to formulated legal texts. In addition, central parts of the recommended package of measures relate to the involvement of Internet providers, a topic which is also dealt with by the working group mentioned in section 2.
2 On October 9, 2013, the Federal Council, based on Postulate Amherd 11.3912, “Legal Basis for Social Media,” of September 29, 2011, commissioned the Federal Department of Justice and Police with a deadline of the end of 2015 to investigate the civil liability of platform operators and providers and, if necessary, to prepare a preliminary draft for their legal regulation. An internal administrative working group chaired by the Federal Office of Justice is working on this. The follow-up work on the final report of Agur 12 is to be coordinated with it in terms of content, but also in terms of time. Before the summer break, the Federal Council will deal in depth with the final report of Agur 12 and decide on the further procedure.
3. most of the recommendations of Agur 12 concern measures that require a change in the law. In the short term and without a change in the law, the proposed broad-based information campaign and certain measures to further increase the efficiency and transparency of the collecting societies (simplification of the tariff landscape) can be implemented. They are primarily in the hands of the rights holders and users or the tariff partners. Likewise, the supervisory authority can influence the costs of the collecting societies.
The recommendation to the legislator to avoid or eliminate market entry barriers that hinder the emergence of legal offerings requires a long-term time horizon for implementation. It implies increased competition law thinking and a redimensioning of copyright protection to a reasonable extent. This would require a change or at least a new interpretation of the relevant international agreements.
Finally, the final report of Agur 12 is also characterized by the fact that it even expressly rejects certain measures and thus also a corresponding change in the law. For example, it proposes to continue to allow free downloading for private purposes, even if this is done from an illegal source.
4 The roundtable on copyright on the Internet initiated by Seco identified the creation of an instrument under civil law, which supplements the possibility of legal action under criminal law, as appropriate with a view to proportionality and the capacities of the prosecution authorities. At the same time, it reserved the report on social media (see para. 2) and the decisions on the follow-up work on Agur 12, which were not yet available at the time. In its final report, Agur 12 recommends the creation of an instrument under civil law.