Inter­pel­la­ti­on Stöck­li (12.4202): Swis­s­com. Deal­ing with copy­right-pro­tec­ted content

Inter­pel­la­ti­on Stöck­li (12.4202): Swis­s­com. Deal­ing with copy­right-pro­tec­ted content
Done (19.03.2013)

Sub­mit­ted text

The Fede­ral Coun­cil is ins­truc­ted to com­ment on the fol­lo­wing que­sti­ons, also against the back­ground of its role as the aut­ho­ri­ty respon­si­ble for defi­ning the owner­ship stra­tegy of the Con­fe­de­ra­ti­on as the majo­ri­ty share­hol­der of Swisscom:

1) How does it view the fact that Swis­s­com, as an Inter­net ser­vice pro­vi­der, tole­ra­tes the fact that its sub­scri­bers are offe­red copy­right-pro­tec­ted con­tent for down­load or strea­ming from various ille­gal­ly ope­ra­ting plat­forms wit­hout aut­ho­rizati­on from the rights hol­ders? How can Swis­s­com and other access pro­vi­ders be held accoun­ta­ble in this regard?

2. how does it assess – with regard to com­ba­ting such plat­forms – the expe­ri­ence of the Fede­ral Office of Poli­ce and the Coor­di­na­ti­on Unit for Com­ba­ting Inter­net Crime (Kobik), which has now been gathe­red over seve­ral years and which has deve­lo­ped an appar­ent­ly effec­ti­ve set of instru­ments for various offen­ces (inclu­ding racism, child pornography)?

3. how does it view the fact that Swis­s­com (or orga­nizati­ons com­mis­sio­ned by it) is pla­cing adver­ti­se­ments for Swis­s­com pro­ducts and ser­vices on such platforms?

Justi­fi­ca­ti­on

The Con­fe­de­ra­ti­on is the majo­ri­ty share­hol­der of Swis­s­com and, as part of its “Stra­te­gic objec­ti­ves of the Con­fe­de­ra­ti­on for its par­ti­ci­pa­ti­on in Swis­s­com Ltd. 2010 – 2013”, has defi­ned an owner­ship stra­tegy which requi­res, among other things, that Swis­s­com “sus­tain­ab­ly secu­res and increa­ses the value of the com­pa­ny”, “has appro­pria­te risk manage­ment in place” and “pur­sues a sus­tainable cor­po­ra­te stra­tegy com­mit­ted to ethi­cal prin­ci­ples”. This implies that Swis­s­com proac­tively iden­ti­fi­es and com­bats aver­ta­ble risks to its cor­po­ra­te repu­ta­ti­on in order to pro­tect share­hol­der interests.

Obvious­ly, Swis­s­com sub­scri­bers also have access today to Inter­net plat­forms which typi­cal­ly do not regu­la­te copy­rights and ancil­la­ry copy­rights for the con­tent to which they pro­vi­de access, but which gene­ra­te pro­fits, e.g. through adver­ti­sing or sub­scrip­ti­on reve­nues (also swit­ched by Swis­s­com or orga­nizati­ons com­mis­sio­ned by it). Indi­rect­ly, the rights hol­ders (artists, pro­du­cers, dis­tri­bu­tors, etc.) incur very lar­ge reve­nue los­ses from the­se busi­ness prac­ti­ces – inclu­ding Swis­s­com its­elf as a con­tent provider.

Kobik alre­a­dy pre­pa­res sus­pi­cious acti­vi­ty files for various cri­mi­nal offen­ses and for­wards them to the can­to­nal pro­se­cu­ti­on aut­ho­ri­ties, and often reports them direct­ly to Inter­net ser­vice pro­vi­ders and web­site ope­ra­tors for dele­ti­on (accor­ding to Kobik’s 2011 annu­al report). Obvious­ly, the tech­ni­cal and legal pos­si­bi­li­ties exist to block cor­re­spon­ding offers.

Against this back­ground, it is neces­sa­ry for Swis­s­com to do ever­ything in its power to cle­ar­ly and com­pre­hen­si­bly distance its­elf from such ille­gal machi­na­ti­ons and to pro­tect its sub­scri­bers and its own offe­ring from them.

State­ment of the Fede­ral Council

1. the working group set up by the Head of the Fede­ral Depart­ment of Justi­ce and Poli­ce to opti­mi­ze the coll­ec­ti­ve explo­ita­ti­on of copy­rights and rela­ted rights (“Agur 12”; https://www.ige.ch/de/urheberrecht/agur12.html) is con­cer­ned, among other things, with the que­sti­on of the ext­ent to which an obli­ga­ti­on on Inter­net access pro­vi­ders such as Swis­s­com to take acti­ve mea­su­res to pro­tect copy­rights would be com­pa­ti­ble with the con­sti­tu­tio­nal­ly pro­tec­ted right to pri­va­cy (Art. 13 of the Fede­ral Con­sti­tu­ti­on), tele­com­mu­ni­ca­ti­ons sec­re­cy (Art. 43 TCA, Art. 321ter StGB), data pro­tec­tion and the right to free­dom of expres­si­on. Results are expec­ted by the end of 2013. It is que­stionable whe­ther access pro­vi­ders would even be able to per­form con­tent tria­ge in view of the abun­dance of web­sites. For this rea­son, a new Artic­le 24a was inser­ted on the occa­si­on of the par­ti­al revi­si­on of the Copy­right Act, which limits the lia­bi­li­ty of access pro­vi­ders vis-à-vis the owners of copy­rights and rela­ted rights in the inte­rest of effi­ci­ent use of modern com­mu­ni­ca­ti­on systems.

With regard to the dis­se­mi­na­ti­on of ille­gal, in par­ti­cu­lar por­no­gra­phic, racist, dis­cri­mi­na­to­ry, offen­si­ve or exce­s­si­ve­ly vio­lent con­tent on the Inter­net, the Fede­ral Coun­cil has repea­ted­ly sta­ted – most recent­ly in its respon­se to Moti­on Rik­lin 09.4222 – that the exi­sting cri­mi­nal and civil law pro­vi­des a suf­fi­ci­ent basis for com­ba­ting this and that tigh­tening the lia­bi­li­ty of access pro­vi­ders would not be in the inte­rests of Switz­er­land as a busi­ness location.

Swis­s­com does not tole­ra­te ille­gal prac­ti­ces on the Inter­net and will take all mea­su­res within its means to pre­vent the dis­se­mi­na­ti­on of con­tent rele­vant to cri­mi­nal law if orde­red to do so by a court or the authorities.

2. the natio­nal coor­di­na­ti­on unit for com­ba­ting cyber­crime (Kobik) actively sear­ches the Inter­net for con­tent rele­vant to cri­mi­nal law and recei­ves sus­pi­cious acti­vi­ty reports from Ger­ma­ny and abroad. It exami­nes their rele­van­ce in terms of cri­mi­nal law and for­wards rele­vant cases to the pro­se­cu­ti­on aut­ho­ri­ties in Switz­er­land and abroad. The vast majo­ri­ty of reports in 2011 con­cer­ned hard­core por­no­gra­phy as defi­ned in Artic­le 197 StGB. Copy­right inf­rin­ge­ments were also repor­ted, but accoun­ted for only 0.75 per­cent of all tips. Due to its limi­t­ed resour­ces, Kobik is forced to focus on con­tent. The­se lie in par­ti­cu­lar in com­ba­ting hard­core por­no­gra­phy and pedo­crime on the Inter­net, eco­no­mic cri­mes and cyber­crime in the nar­rower sen­se. The Kobik model has lar­ge­ly pro­ved its worth in the­se are­as. For an assess­ment of whe­ther the Kobik model would be sui­ta­ble as a pos­si­ble model for com­ba­ting copy­right inf­rin­ge­ments, the results of the cla­ri­fi­ca­ti­ons of the “Agur 12” working group must be awaited.

3 Swis­s­com is awa­re of the sen­si­ti­vi­ty of the issue. In accordance with its gui­de­lines, which are also pas­sed on to agen­ci­es com­mis­sio­ned by it, Swis­s­com refrains from adver­ti­sing on que­stionable or con­tro­ver­si­al web­sites. Howe­ver, in view of the abun­dance of offers on the Inter­net, it can never be com­ple­te­ly ruled out that – excep­tio­nal­ly and unin­ten­tio­nal­ly – an adver­ti­se­ment is pla­ced on such a web­site. If such a case is detec­ted or repor­ted, Swis­s­com will imme­dia­te­ly arran­ge for the dele­ti­on of the adver­ti­sing. The Fede­ral Coun­cil sees no need to issue spe­ci­fic gui­de­lines on adver­ti­sing prac­ti­ce as part of its stra­te­gic objec­ti­ves for Swisscom.

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