On 22.11.2017, the Federal Council adopted the draft and dispatch for a revision of the URG presented; cf. in more detail under swissblawg. The following points are particularly interesting:
Lex Logistep
First of all, the limited exemption of data processing for law enforcement purposes (Art. 77i E‑URG) is noteworthy:
1 The rightholders who, in their copyrights or related rights be injured, may Edit personal datainsofar as this is necessary for the purpose of filing a criminal complaint or criminal charges and they can lawfully access it. They may also use this data for the assertion by adhesion of civil claims or for their assertion after criminal proceedings have been concluded.
2 You have defined the purpose of the data processing, the type of data processed and the scope of the data processing. disclose.
3 They may not use the personal data referred to in paragraph 1 not link to data collected for other purposes.
This Lex Logistep allows the use of personal data if and to the extent necessary for criminal applications or charges:
For the purposes of the first sentence of paragraph 1, rightholders may, for example, collect IP addresses from peer-to-peer networks in order to document the copyright infringements committed and subsequently transmit this data to the law enforcement authorities.
The Logistep decision of the Federal Supreme Court had prohibited this procedure. – Data processing is only permitted for criminal proceedings and the enforcement of civil claims by adhesion, but not for independent civil proceedings. Criminal proceedings initiated exclusively for the enforcement of civil claims are to be regarded as circumvention:
The criminal proceedings are of independent importance and must not be instrumentalized merely for the civil law enforcement of the committed copyright infringement.
In this case, the data processing would therefore probably be unauthorized. It remains to be seen to what extent the general principles of data protection law are superseded by Art. 77i E‑URG; however, it seems reasonable to assume a lex specialis to be assumed.
Secondly, data processing must be transparent (recognizable). Here the Federal Council states – analogous to the dispatch on the revision of the FDPA and according to the current practice of the FDPIC – that the disclosure can also be made on the website of the data processor. The Federal Council thus affirms, that the transparency required by data protection law generally can be created via a websiteprovided that it is generally accessible, namely even if not in AGB or a privacy policy refers to this website.
Stay-down duty
New will be a Stay-down obligation for hosting providers introduced (Art. 39d E‑URG), which according to the BR represents a concretization of the current injunctive relief:
1 The operator of an Internet hosting service that stores information entered by users is obliged to preventthat a work or other protected object is made available to third parties with the help of its service. again illegally accessible is made if the following conditions are met:
a. The work or other protected object has already been illegally accessible to third parties via the same Internet hosting service made
b. The operator was notified of the infringement pointed out.
c. The Internet hosting service has a special danger of such infringements is created, namely through a technical functionality or by a economic orientationthat promote infringements of rights.
2 The operator must take those measures that, taking into account the risk of such violations of rights technically and economically reasonable are.
According to the message, this obligation is aimed at providers who Host piracy platformsbecause there, copyright-infringing content is often quickly posted again after removal. The requirement of a “particular risk of infringement” according to paragraph 1 lit. c, which is to be assessed by an overall evaluation of the technical and economic circumstances, goes in this direction. The Message mentions the following indications here:
- The ability to simply re-upload infringing content (which is indicative, but not sufficient in and of itself);
- unusually high number of justified notifications
- Accumulation of linking to collections of links to copyright-infringing content
- Possibility to use the service without the users having to sufficiently prove their identity
- Incentives for users to make other people’s content publicly available (e.g., compensation, bonus credits, etc. based on access or download numbers); here, the message can be read to mean that such a system is per se dangerous.
- However, private servers for exchanging photos in the family may already be recorded, which does not fit in well with the other indications.
If such a hosting provider has already previously made works or other protected objects accessible, by means of a copy or also a link, and if it is informed of this in a sufficiently concrete manner, it must take reasonable measures to prevent a renewed infringement. The Reasonability is measured, among other things, by the economic possibilities of the provider, so that less is demanded of small providers than of large players. If a covered provider fails to take reasonable measures, it can be forced to do so by a court of law.
Light image protection
Remarkable is then the extended protection of photography. According to Art. 3 para. 2bis E‑URG applies:
Photographic reproductions and reproductions of three-dimensional objects made by a process similar to photography are considered works even if they do not have an individual character.
This is intended to introduce into Swiss law a “photographic image protection” known from German law. As is already the case today with software, the The requirement of individuality is thus selectively broken through. As the Federal Council specifies, the extended copyright protection applies to photographs regardless of the photographer’s qualifications (professional or amateur), the subject matter of the image (security guard Meili, product photo, snapshot of the beach) and the aesthetic value of the photo; the only decisive factor is that the photo depicts a physically existing three-dimensional object (the photo of a photograph depicting a three-dimensional object is thus not protected).
Since the subject matter of the photograph is irrelevant, the question arises as to whether, via the photographic image protection, not also non-protectable three-dimensional objects (e.g., non-individual furniture) can be indirectly protected by being photographed, because the copy of this object could then constitute a use of the photograph as a work.
Transitional is not linked to the taking of the photograph, but to its use; the renewed use of the Wachmann-Meili photograph after the revision has come into force would therefore be relevant to copyright.