Tag Archives: AGUR12

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The revision of the existing Copyright Act is entering the decisive phase this year. After seven years’ preparatory work, parliamentary debates have now started. The revised act could come into force on 1.1.2020 if both federal houses respect the delicate compromise. Text by Andreas Wegelin

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The jurisprudence in Switzerland and Europe is clear: when a hotel receives radio or television broadcasts and retransmits them into its guest rooms, it is a use which is relevant for copyright purposes. (Photo: Piovesempre / iStock)

The long road to a minor partial revision started nine years’ ago: in 2010, State Councillor Géraldine Savary asked the Federal Council to propose solutions to prevent the use of illegal online offers. The Federal Council rejected the request arguing that authors could simply give more concerts to make up for the loss in earnings caused by the slump in CD sales. This answer outraged musicians, and rightly so: not all composers can perform their own works.

In summer 2012, Federal Councillor Sommaruga responded to the protests by creating a working group to prepare proposals for the revision of the Copyright Act. AGUR12, as the working group was called, submitted its recommendations in December 2013. Based on those recommendations and on a wealth of additional unacceptable proposals, the Federal Council produced a preliminary bill in 2015 which met with widespread criticism in the consultation process. FC Sommaruga was obliged to reconvene the AGUR in autumn 2016. AGUR12 II concluded its work in March 2017 with a compromise. At the end of 2017, relying largely upon this compromise, the Federal Council submitted a revised bill to Parliament.

Main points of the revised bill

The relevant key elements of the compromise for musical authors are:

  • Obligation for the hosting provider to remove illegal content and to prevent further uploading of such content (Article 39d); provision for processing personal data to facilitate prosecution of illegal uploading of protected music (Article 77i). Additional demands by authors and producers, e.g. to block access to illegal offers on the Internet, met with strong resistance from consumers and network operators, and were disregarded in the compromise. In this context, one should also consider that such blocking in the musical field would in any event have come ten years too late. Thanks to a wide range of affordable, legal and easy-to-use music streaming services, file-sharing networks and illegal services in the musical field have been greatly reduced.
  • SUISA’s right to information from users in tariff negotiations and accelerated procedure for the approval of copyright tariffs (Articles 51 and 74(2))
  • Extended collective licence (Article 43a): this provision, for instance, enables users to obtain a licence from the collecting societies for publications from archives.

Remuneration for video on demand – unnecessary for composers

The Federal Council also proposed to introduce a remuneration claim for music with regard to video on demand (Articles 13a and 35a). Music creators do not, however, need this: Article 10(2) already entitles them to authorise or refuse the use of their works (in this case, film music). SUISA has already concluded licence agreements for VoD services with all main providers. No new remuneration claims are needed. The existing legislation is adequate.

The VoD remuneration claim was primarily designed to enable Swiss filmmakers to receive fair compensation when their films are viewed on new platforms like Netflix. This would reduce the “value gap” that filmmakers suffer because they participate neither in the direct “pay per view” revenue nor in the platforms’ indirect revenues from advertising and the sale of usage data. Conversely to film music composers who are well organised in rights’ management organisations worldwide, Swiss filmmakers have very limited bargaining power and are therefore dependent on this new remuneration claim.

Against the recommendations of AGUR12 II, the Federal Council extended this claim to music authors who, as mentioned above, do not need this special entitlement. Regrettably, the National Council did not follow our reasoning in the detailed discussion of the law in December 2018 and failed to provide for an exception for music authors. The last hope now lies with the Council of States, which will probably deal with the subject in its March session.

New exemption from the obligation to pay remuneration for radio and TV reception in hotel rooms?

In December 2018, the National Council decided, via the back door so to speak, to follow the parliamentary initiative of Valais FDP MP Nantermod and add a new clause in Article 19(1)(d) FCA providing that the retransmission of radio and TV broadcasts, but also of music or video channels, on demand in hotel rooms, rented holiday apartments, hospital rooms and prison cells, are exempted from copyright fees. As a result, authors would be in a worse position than under the existing legislation, and the revision of the law would work largely to their disadvantage.

What is at stake? If a hotel retransmits radio or TV broadcasts to its guest rooms, the retransmission qualifies as a “rebroadcast” within the meaning of Article 10(2)(e) FCA. This was decided by the Federal Supreme Court in 2017. The providers of TV sets and audio players in guest rooms are hoteliers, landlords of holiday apartments, or hospital operators. All of them operate for profit. Such usage does not, therefore, qualify as private use. The jurisprudence in Switzerland and Europe is clear: this is a relevant usage under copyright law.

The decisions are based on the Bern Convention, the most important international treaty in copyright law, and on other international treaties such as the WCT and the WPPT. Switzerland cannot disregard these treaties. If it did, it would expose itself to sanctions because the obligations under the Bern Convention are also enshrined in the WTO Agreement on the Protection of Intellectual Property (TRIPS). To avoid sanctions if Switzerland were to incorporate this new exception into its law, the exception could only apply to the works of Swiss authors – a totally unacceptable discrimination.

“Hotel rooms would hardly be cheaper if the small copyright fee was eliminated.”

What does it cost hoteliers today? Fees are calculated based on the surface area covered by the TV/audio usage. Up to 1000 m2, the monthly licence fee is CHF 38. Hotels with up to 50 rooms of 20m2 each pay less than CHF 1 per room per month. The rate is slightly higher for larger areas. Hotels with 100 rooms pay CHF 91.80, which is still less than CHF 1 per room per month. The cost for hotels is therefore modest. However, all things being equal, the shortfall for authors and other rightholders would add up to some CHF 1 million per year.

Hoteliers pay their other suppliers for all other services delivered to their hotels. These range from electricity and cleaning to soap in the bathrooms. These goods and services are not provided free of charge – they are part of the hotel supply chain. Hoteliers run their hotels for profit, and in-room entertainment contributes to the price of a room and, therefore, to the added value of the hotel. Why should hoteliers who offer this service to their guests not have to pay the music and film rightholders? Exempting hotel rooms from the copyright remuneration obligation would discriminate against authors and other rightholders compared with other suppliers. And consumers would not even benefit from the exemption because hotel rooms would hardly be cheaper if the small copyright fee was eliminated.

The compromise and the FCA revision both at jeopardy

As mentioned above, the compromise bill for the revision of copyright law put together by AGUR12 II and the Federal Council is now on the finishing straight. If Parliament were to significantly worsen authors’ situation by introducing the hotel room exception, authors would feel slighted and might present further demands for revision. With the risk that no new law is adopted and nearly nine years’ revision efforts will all have been for nothing in the end.

If the revision were to deprive them of the right to allow their works to be rebroadcast in hotel rooms against remuneration, music authors would probably be better off under the existing law.

It is essential that we defend the delicate compromise in the coming months and impress on the Councils that no further changes to the detriment of authors are admissible.

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The revision of the existing Copyright Act is entering the decisive phase this year. After seven years’ preparatory work, parliamentary debates have now started. The revised act could come into force on 1.1.2020 if both federal houses respect the delicate compromise. Text by Andreas Wegelin

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The jurisprudence in Switzerland and Europe is clear: when a hotel receives radio or television broadcasts and retransmits them into its guest rooms, it is a use which is relevant for copyright purposes. (Photo: Piovesempre / iStock)

The long road to a minor partial revision started nine years’ ago: in 2010, State Councillor Géraldine Savary asked the Federal Council to propose solutions to prevent the use of illegal online offers. The Federal Council rejected the request arguing that authors could simply give more concerts to make up for...read more

No adequate share for audiovisual artists regarding video on demand and streaming success

Film director Ursula Meier is speeding from one success to the next, both in Switzerland as well as abroad. She elaborates why it is necessary to enhance the value of the position of film makers and actors in the video on demand (VOD) sector in the course of the copyright law review. Text/Interview by guest author Jürg Ruchti, CEO, SSA

No adequate share for audiovisual artists regarding video on demand and streaming success

Ursula Meier is a film director and a member of SSA. SSA is a sister society of SUISA and manages copyright for stage and audiovisual works. (Photo: Claude Dussez)

Ursula Meier, you are a member of the Société Suisse des Auteurs (SSA) – why?
Well, first and foremost because SSA looks after my copyright in an efficient manner. It also provides me with additional services: SSA is a cooperative society which is based on mutuality and solidarity and defends the interests of creators of audiovisual and stage works.

Creatives are asking for an implementation of new provisions regarding the video on demand (VOD) into the Swiss Copyright Act.
Yes, that’s very important. Thanks to the internet, our works are being consumed as often as never before but creatives are not paid to the extent that they would deserve. Digital economy players claim the income which have arisen from the consumption of our works but reject any obligations above and beyond that.

But isn’t it the case that authors negotiate their rights with the producer when they create a film?
Yes, but the contractual chains for the exploitation of the works are so complex and sometimes opaque that the income does actually not reach the artist or creator. There is a multitude of contracting parties. The digital economy leaves producers in an unprecedented state of uncertainty. They don’t know whether they’ll ever get their investment back. There are several reasons for that. This affects the levels of remuneration which they can grant artists during the contractual negotiations prior to the completion of a film. Our conditions have thus got worse.

Why should VOD platforms be obliged to remunerate authors via their collective management organisations?
Because if that were the case, authors would get a fair share of the success of their work, since their collective management organisations would get involved with the last player in the value chain i.e. the party which is in direct contact with the consumer. In the TV sector in Switzerland, this model has been established for quite some time and it works to our satisfaction. The current law does actually provide an obligation to pay for the rental of video tapes or DVDs. Since VOD has now taken over this market segment, the law should be adapted to this development.

The suggested new provision does, however, not seem to be beyond all doubt.
No, since it contains two contentious issues: First, it also affects music which does not want this provision since its system already works well in all countries. This is not the case for scriptwriters, directors and actors. A collective management of their rights only exists in few countries and the platforms often operate from other countries. The second issue which is problematic relates to works which are commissioned by TV broadcasters: The legislative draft provides for them to be excluded from the new mandatory remuneration for artists.

What exactly is the problem in the case of commissioned work?
These works are the most sought after works on this new market, for example series. The circle of principals has grown: In future, VOD platforms join TV broadcasters. There is no reason to treat the former in any other way than the latter. Works do follow a path. Sooner or later they can be consumed on a multitude of platforms. If commissioned works are being excluded from this new VOD right, authors do not receive any remuneration for their online exploitation. Their situation would therefore hardly improve. Here’s an example: A new series, commissioned by the RTS, which subsequently is made available via a streaming service such as Amazon would be exempt from the new legislation. This exclusion undermines the meaning of the new law and its general intention consequently misses the mark. The argument which forms the basis to this legal article does not reflect reality and I hope that this will be resolved in the course of the debates in the respective sessions.

About Ursula Meier
Ursula Meier is an internationally renowned film director. “Home” (with Isabelle Huppert) was among the nominated films at the 2008 Cannes Film Festival and received numerous international awards. In 2012, “L’enfant d’en haut” (with Léa Seydoux and Kacey Mottet Klein) was awarded the special prize Silberner Bär [Silver Bear] at the Berlinale [Berlin Film Festival]. Just like “Home”, in 2010, the film was given three Swiss film awards, among them the award for the best film, and it also represented Switzerland at the Oscars. At the beginning of 2018, Ursula Meier completed “Journal de ma tête”, a TV film with Fanny Ardant and Kacey Mottet Klein. The film was nominated for the Berlinale. Ursula Meier was the president of the jury for the Caméra d’Or at the Cannes Film Festival this year.
About the remuneration right for video on demand
Online platforms that make available feature films (cinema and TV) have replaced DVD rental. Whereas, under Article 13 FCA, authors and artists used to receive a share of DVD rental revenues, this is no longer the case for online availability. The revised legislation must ensure that authors and performing artists, as the primary creators of value, participate in this new economic model. Swisscopyright welcomed the introduction of a right to remuneration in Articles 13a and 35a FCA-B in principle. The collecting societies, however, underscored that the right to remuneration must be supplemental to the fees paid to the creators by producers (for the commissioning of works, the performances therein and the corresponding rights). The FCʼs proposal is not clear in this respect. Swisscopyright argues that the parliamentary debates must make it clear that the right to receive remuneration is supplemental to, and not in lieu of, such fees.
“The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms. The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.”
Moreover, the exclusion of music works from the new right to remuneration was an essential element of the AGUR 12 II compromise; regrettably, the FC has not included this exclusion in its proposal. Since the voluntary collective management model functions well in the music sector, we should come back to the solution advocated by AGUR12 II. The music and the audiovisual sector diverge significantly in this respect “The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms (alongside the aggregators who handle all other rights in the film). The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.
In the field of music, however, it is necessary to ensure that the revenues distributed by collecting societies are properly apportioned between the composer and the publisher. The composer must in any event receive an equitable share. Article 49(3) FCA already guarantees this for concerts, radio broadcasts and CD productions. But this rule only applies to areas under federal regulation, and therefore not to VoD. As a result, Swisscopyright proposes rewording paragraph 5 of Article 13a FCA-B to stipulate the composerʼs right to a fair share of the voluntary collective management revenues, in line with SUISAʼs current practice.
Excerpt from the SUISAblog-Article: “Copyright law revision: work starts in the parliamentary committees” by Vincent Salvadé.

The interview with Ursula Meier was conducted for the “Sessionsbrief” (session letter) (PDF, in German) of Swisscopyright, published in September 2018. Swisscopyright is the joint umbrella of the five Swiss collective management organisations ProLitteris, SSA, SUISA, Suissimage and Swissperform. With the “Sessionsbrief”, the societies inform interested parties from within the political scene as well as the public on subjects affecting copyright.

Swisscopyright Website

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Film director Ursula Meier is speeding from one success to the next, both in Switzerland as well as abroad. She elaborates why it is necessary to enhance the value of the position of film makers and actors in the video on demand (VOD) sector in the course of the copyright law review. Text/Interview by guest author Jürg Ruchti, CEO, SSA

No adequate share for audiovisual artists regarding video on demand and streaming success

Ursula Meier is a film director and a member of SSA. SSA is a sister society of SUISA and manages copyright for stage and audiovisual works. (Photo: Claude Dussez)

Ursula Meier, you are a member of the Société Suisse des Auteurs (SSA) – why?
Well, first and foremost because SSA looks after my copyright in an efficient manner. It also provides me with additional services: SSA is a cooperative society which is based on...read more

Copyright law revision: work starts in the parliamentary committees

On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. Text by Vincent Salvadé

Copyright law revision: work starts in the parliamentary committees

Revision of Swiss copyright law: work has started in the Federal Palace in Berne. (Photo: Simon Zenger / Shutterstock.com)

The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on 18 May 2018.

Each time, SUISA acted in association with Swisscopyright, the entity which brings together the five Swiss collective management societies in the field of copyright and neighbouring rights. SUISA started by underscoring that the main objective of Swisscopyright was to ensure fair remuneration for cultural creators, including in the digital age. For this reason, the five collective rights management societies supported the compromise achieved at AGUR12 II level and, consequently, the Federal Councilʼs proposal. However, the societies asked for changes in the provisions governing the new entitlement to remuneration for video on-demand (VoD) with a view to ensuring that the new regulations better reflect the AGUR12 II compromise and secure fair remuneration for creators.

1. General appraisal of the FCʼs bill

Swisscopyright welcomed the Federal Council’s intention to introduce an “extended collective licence” (Article 43 FCA-B). Collecting societies could thus grant blanket authorisations for certain uses, including on behalf of rightholders they do not contractually represent; this would foster cultural projects while assuring remuneration for entitled parties. The blanket authorisation would apply to uses which cannot be individually controlled by rightholders; collecting societies would act as an “insurance” (of a sort) for users. The extended collective licence is perfectly consistent with the function of a collective rights management society, which is to facilitate and simplify rights management for all stakeholders.

Generally speaking, Swisscopyright welcomes all the measures designed to improve collective rights management: according to the FCʼs proposal, users would be required to communicate their declarations to collecting societies in electronic form to facilitate automatic processing (Article 51 FCA-B); collecting societies would be authorised to exchange the data delivered by users (Article 51(1bis) FCA-B); accelerated tariff appeals procedure (Article 74(2) FCA-B); and the Federal Arbitration Commission in charge of tariffs would be permitted to hear witnesses (see draft of new Article 14(1) lit. g of the Administrative Procedure Act). These new rules are designed to increase efficiency, reduce management costs and ensure more money is available for distribution to cultural creators.

“Swisscopyright believes these new anti-piracy measures are necessary to foster legal offers ensuring fair remuneration for creators.”

Swisscopyright also supports the Federal Councilʼs proposals for new anti-piracy measures since they contribute to improving the situation. According to Article 39d FCA-B, platforms presenting significant piracy risks would be obligated to actively combat copyright infringements (stay down obligation). The possibility of processing data for criminal prosecution purposes (Article 77i FCA-B), must be included in the FCA since the Federal Supreme Court ruled that collecting information on pirates and hackers (in particular their IP addresses) is not currently admissible under the Law on Data Protection (ATF 136 II 508). Swisscopyright believes these new anti-piracy measures are necessary to foster legal offers ensuring fair remuneration for creators.

Swisscopyright accepted the proposed copyright exception for the use of works for scientific research (Article 24d FCA-B), but only in the context of the AGUR12 II compromise. The fact that – conversely to what had been proposed in the original draft in 2015 – this exception is not accompanied by a claim to remuneration is indeed problematic for rightholders in the literary field. Swisscopyright underscored that no further concessions to the scientific community would be accepted on the backs of cultural creators.

2. Right of remuneration for VoD

Online platforms making available feature films (cinema and TV) have replaced DVD rental. Whereas, under Article 13 FCA, authors and artists used to receive a share of DVD rental revenues, this is no longer the case for online availability. The revised legislation must ensure that authors and performing artists, as the primary creators of value, participate in this new economic model: Swisscopyright welcomed the introduction of a right to remuneration in Articles 13a and 35a FCA-B. The collecting societies underscored that the right to remuneration must be supplemental to the fees paid to the creators by producers (for the commissioning of works, the performances therein and the corresponding rights). The FCʼs proposal is not clear in this respect; Swisscopyright argues that the parliamentary debates must make it clear that the right to remuneration is supplemental to, and not in lieu of, such fees.

“The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms. The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.”

Moreover, the exclusion of music works from the new right to remuneration was an essential element of the AGUR 12 II compromise; regrettably, the FC has not included this exclusion in its proposal. Since the voluntary collective management model functions well in the music sector, we should come back to the solution advocated by AGUR12 II. The music and the audiovisual sector diverge significantly in this respect. The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms (alongside the aggregators who handle all other rights in the film). The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.

In the field of music, however, it is necessary to ensure that the revenues distributed by collecting societies are properly apportioned between the composer and the publisher. The composer must in any event receive an equitable share. Article 49(3) FCA already guarantees this for concerts, radio broadcasts and recordings. But this rule only applies to areas under federal regulation, and therefore not to VoD. As a result, Swisscopyright proposes rewording paragraph 5 of Article 13a FCA-B to stipulate the composerʼs right to a fair share of the voluntary collective management revenues, in line with SUISAʼs current practice.

The plenary debates in the National Council (expected in autumn) will show whether the parliamentary committees were sensitive to the argumentation put forward by Swisscopyright.

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On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. Text by Vincent Salvadé

Copyright law revision: work starts in the parliamentary committees

Revision of Swiss copyright law: work has started in the Federal Palace in Berne. (Photo: Simon Zenger / Shutterstock.com)

The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on...read more

SUISA’s financial year 2018: an outlook

In the Committee and Board meetings towards the end of the year, framework conditions for the following financial year are set. As such, the meetings of the SUISA Board in December 2017 continued to be characterised by budgets, cost rates, staffing plans, roadmaps, politics and quite a bit more. Report from the Board by Dora Zeller

SUISA’s financial year 2018: an outlook

During the meetings of the SUISA Board in December 2017, the focus was on the figures for the next financial year. (Photo: Kemal Taner / Shutterstock.com)

For the first time in the history of SUISA, the Board presented two budgets in the December meeting: that of the Cooperative Society SUISA and that of the group of companies. The group of companies includes – apart from the parent company – the subsidiary company SUISA Digital Licensing (headquartered in the Principality of Liechtenstein). Furthermore, the group of companies holds a 50% share in the Joint Venture Mint Digital Licensing AG (headquartered in Zurich).

The Board members were given access to the budgeted figures of the affiliated companies. The definitive decision on their business lies, however, with the committees in charge of each society. A new point is therefore added to SUISA’s competency rules in terms of rights and obligations of the Board.

SUISA budget 2018

Back to the numbers: A modest increase is expected for performing and broadcasting rights and a continuation of the downward trend among the reproduction rights. The compensation claims, however, might see a steep rise compared to the 2017 budget (thanks to higher collections from the blank media levy, internal networks in businesses and the rental of set top boxes). Part of the online collections will be allocated to the subsidiary company for accounting purposes. Collections from online use for music on Swiss websites, online advertising campaigns and video on demand services remain in the SUISA budget.

SUISA’s overall turnover budgeted for financial year 2018 amounts to CHF 151.9m. Collections from the use of copyright in Switzerland are budgeted to reach CHF 136.6m. On top of that, net revenues of CHF 11m are expected from abroad. Furthermore, secondary income of CHF 4.3m shall contribute to the overall results.

Expenditure is probably going to increase compared to the previous year, mainly because of the collections of CT 3a (background entertainment). From mid-July, additional staff positions are budgeted to take over this business. The Board has approved the budget for 2018 knowing that it is based on the rejection of the No-Billag-Initiative. Should the voting populace reject the fee for the reception of broadcasts, the changed situation would be met with adapted scenarios.

Regulations and statutory provisions

The auditors regularly supply the governing bodies of SUISA a questionnaire on potential unlawful actions. With this statutory provision, the level of awareness among governing bodies for unlawful acts shall be determined. By way of their answers, management and Board estimate the risk levels and comment on the control procedures. The results were approved and passed on to BDO.

Cost coverage deductions

The Board also decided that the deductions in the off-line sector correspond to those of the previous year. For the online sector it approved slightly changed rates for domestic and international application.

Changes at Board level

Due to the limitation of the period in office, two members of the Board will step down in June 2019. The knowledge acquired over many years in office by the Board members who are now stepping down needs to be replaced and SUISA needs to prepare for future challenges. As early as autumn 2017, a working group has begun with a situational analysis regarding the imminent Board retirements. The Board was informed about the results and the next steps of this analysis.

Copyright Act Review

In November, the Federal Council has passed the message regarding the Copyright Act review together with the legislative proposal on to Swiss parliament. The matter is initially going to be dealt with at National Council level by the Legal Affairs Committee (LAC), and subsequently in the States Council’s Science, Education and Culture Committee (SECC).

The Board was informed about the developments by G. Savary, member of the Board and the SECC. At the same time, he learned from the Executive Committee that the collective management organisations are satisfied with the draft by and large. It corresponds to the compromise developed by the AGUR12-II.

Need for action continues to exist in the sector concerning the online usage of music. In the EU there has been a discussion on the transfer of value on the internet for quite some time. It is high time that this discussion also takes place in Switzerland and that measures are implemented to stop the shift of the value creation away from authors towards internet technology companies.

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In the Committee and Board meetings towards the end of the year, framework conditions for the following financial year are set. As such, the meetings of the SUISA Board in December 2017 continued to be characterised by budgets, cost rates, staffing plans, roadmaps, politics and quite a bit more. Report from the Board by Dora Zeller

SUISA’s financial year 2018: an outlook

During the meetings of the SUISA Board in December 2017, the focus was on the figures for the next financial year. (Photo: Kemal Taner / Shutterstock.com)

For the first time in the history of SUISA, the Board presented two budgets in the December meeting: that of the Cooperative Society SUISA and that of the group of companies. The group of companies includes – apart from the parent company – the subsidiary company SUISA Digital Licensing (headquartered in...read more

Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their works

Last week, the Federal Council has adopted a dispatch on the new Copyright Act. SUISA is in principle content with the current version of the law. The solutions achieved in the working group for the Copyright Act (AGUR12 II) were implemented. In order for authors, performers, publishers and producers to benefit better from the digitisation, it is necessary to adopt important additions. The “Transfer of Value”, for example, is extremely disappointing for creators and artists: Internet giants’ platforms continue to be the ones that cash in on the online exploitation of music and films. Creators and artists – and thus the suppliers of the content – are almost left empty-handed. Text by Andreas Wegelin, CEO

The Copyright Act urgently requires provisions for the online exploitation of works protected by copyright. The value creation nowadays completely passes by creators and artists – and thus the producers of the content. It is especially the powerful internet industry that benefits strongly thanks to the revenue from advertising and usage data. (Image: yaichatchai / Shutterstock.com)

Many creators and artists, users’ associations and other target groups are likely to have received the current version of the Copyright Act with relief: The legal text is a giant step compared to the half-baked draft which the Federal Council had presented at the end of 2015, and which had caused nearly all interest groups to shake their heads. The outcome was that up to March 2016 a record number of more than 1,200 position papers were submitted. The working group on copyright AGUR12 II was also reactivated. We had already reported on this earlier this year, in March, via our SUISAblog.

Parliament supposed to blaze the trail for a modern Copyright Act

The working group is made up of creators and artists, producers, users, consumers, internet service providers, the Federal Office of Justice as well as additional representatives of the administration has obviously done a good job: In the current version, the proposals of the working group were adopted to a large extent. It is now down to the Parliament to blaze the trail for a modernised version of the Copyright Act. SUISA as well as other Swiss collective management organisations support the compromise.

This does, however, not mean that the current version does not need any improvements. On the contrary – the biggest problems of digitisation for creators and artists remains unsolved: Protected works in videos, texts, images and music data have never been used at the same intensity levels as they are today via the internet. Some major internet companies are the profiteers of this exploitation while the value creation almost completely passes by creators and artists – and thus the producers of the content.

Thanks to the internet: Music lovers can nowadays access an enormous number of films, music pieces, books and news articles, nearly from anywhere and at any time. There is no longer a need for physical work copies. The availability in the Cloud or access via streaming is now enough. Apart from online distributors such as Apple, Spotify, Netflix or Amazon, music and films are nowadays mainly shared via social media platforms such as YouTube or Facebook.

Many internet providers hardly take care of copyright

Online distributors usually take care of copyright and enter into licensing agreements with producers and collective management organisations. This leads to musicians, producers and other creators and artists to receive a remuneration for their work. In the case of intermediaries, e.g. social media platforms and aggregators such as Tunein, the situation is different. The technical services they offer also allow users to disseminate works protected by copyright. In such models where protected content is shared, the providers hardly look after the copyright. On the contrary: They regularly pass the responsibility on to the users who upload the contents.

Add to that the fact that social media platforms and aggregators are the competitors of online distributors such as iTunes or Spotify – they yield high financial gains without participating the authors adequately. A European study shows that value added for the operators of such platforms is very high thanks to works such as music and films protected by copyright. 18% of Google’s income, for example, is made on the back of protected works e.g. via sponsored links. If the protected works were to fall away, the click rate and therefore the attractiveness of the search engine would drop. The value creation on platforms such as YouTube is even higher – they yield 2/3 of their turnover with contents protected by copyright – mainly from advertising, but also sales of profile data. They do, however, defer the act of clearing the copyright to those uploading the contents, even though the latter are not even in a position to do so.

A discussion on the Transfer of Value must also take place in Switzerland

Authors, the actual creators of the works, receive no or hardly any remuneration at all in the case of such platforms. This calls for urgent action. In the EU there has been a discussion on the Transfer of Value on the internet for quite some time. It is therefore high time to bring this discussion to Switzerland. Urgent measures are needed in Switzerland so that the transfer of value away from authors can be stopped – and therefore the creeping expropriation of creators and artists. Social media platforms, aggregators and search engine operators must be obligated to pay a compensation for the works used via their technical platforms.

SUISA and other Swiss collective management organisations are therefore going to introduce these important additions to the legislative process. Creators and artists must get a fairer share in the value creation on online platforms.

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Swiss Copyright Review: SUISA in charge of a working groupSwiss Copyright Review: SUISA in charge of a working group Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Read more
Second attempt to review the Swiss Copyright ActSecond attempt to review the Swiss Copyright Act The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Read more
Copyright: Quo vadis?Copyright: Quo vadis? In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Read more
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  1. sam says:

    danke für ihren einsatz

  2. Stevens says:

    They stole our revolution and now they steal our music.

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Last week, the Federal Council has adopted a dispatch on the new Copyright Act. SUISA is in principle content with the current version of the law. The solutions achieved in the working group for the Copyright Act (AGUR12 II) were implemented. In order for authors, performers, publishers and producers to benefit better from the digitisation, it is necessary to adopt important additions. The “Transfer of Value”, for example, is extremely disappointing for creators and artists: Internet giants’ platforms continue to be the ones that cash in on the online exploitation of music and films. Creators and artists – and thus the suppliers of the content – are almost left empty-handed. Text by Andreas Wegelin, CEO

The Copyright Act urgently requires provisions for the online exploitation of works protected by copyright. The value...read more

To be continued: Our success story, spanning more than 90 years

The General Assembly of our Cooperative Society will take place on Friday, 23 June 2017, in Zurich. Members will have the opportunity during the General Assembly to co-determine the destiny of their cooperative society. Apart from the positive results of the annual accounts for 2016, SUISA is also going to report on the Joint Venture Mint Digital Services, co-founded with SESAC, plus on the developments regarding the copyright revision and the debate on the ‘service public’. By Andreas Wegelin, CEO

To be continued: Our success story, spanning more than 90 years

SUISA founded the Joint Venture Mint Digital Services together with US authors’ society SESAC. The project helps improve the competitiveness of SUISA in the online music market. Shown in the picture: Andreas Wegelin, SUISA CEO (on the left), and John Josephson, Chairman and CEO of SESAC Holding. (Photo: Hannah McKay)

SUISA can look back on a successful financial year 2016. Thanks to the positive year-end result, we are able to pay out more than CHF 128m to those who are entitled to receive a payment. That is more than ever before in the successful history of the Cooperative Society SUISA, spanning more than 90 years.

We are also doing well in terms of our costs. An average cost coverage deduction of 12.37% shows that we have the costs under control. If you take the reoccurring supplementary distribution of 7% into consideration as a contribution to the costs, the actual percentage amounts to 6.75% of the pay-outs to those entitled to receive a payment.

SUISA improves its competitiveness in the online market

Members will have the opportunity during the General Assembly to co-determine the destiny of their cooperative society. Apart from the positive annual accounts, we are also going to present the newly founded project for the improvement of SUISA’s international competitiveness in the online music market.

Together with the US authors’ society SESAC, we have founded Mint Digital Services as a Joint Venture back in February 2017. The JV enterprise offers services in relation to the administration and processing of online music licences. With this JV, we emphasise our strategic direction, i.e. to offer rightsholders an efficient and cost-effective administration.

Wanted: Active participation of our cooperative members

There will also be news on the legal framework conditions. AGUR12 II has passed a compromise for the attention of the Head of the Ministry in the EJPD (Federal Department of Justice and Police, FDJP); we are now waiting for it to be substantiated in a legislative draft.

Please do take part in our General Assembly. Only your active participation ensures that SUISA will be there for its members as a Cooperative Society in future.

See you on 23 June 2017 in the Kaufleuten Zurich.

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Commentary on SUISA’s annual results for 2016Commentary on SUISA’s annual results for 2016 SUISA can report a very successful financial year 2016. The result reflects an all-time high regarding the income from domestic copyright exploitation. In the Cooperative Society’s history of more than 90 years, this is a record sum in terms of remuneration that is due for distribution. The average cost coverage deduction remains low – about CHF 88 per CHF 100 of the income collected can be paid out to authors and publishers that are entitled to receive such remuneration. Read more
SUISA member services: one look back, one look forwardSUISA member services: one look back, one look forward Quicker pay-outs due to quarterly settlements, simpler data processing via online works registrations, digital access to statements via “my account”, more efficiency via online forms … What’s next – settlements in “real time”? Will there be no more paper dispatched in future? Read more
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All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

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The General Assembly of our Cooperative Society will take place on Friday, 23 June 2017, in Zurich. Members will have the opportunity during the General Assembly to co-determine the destiny of their cooperative society. Apart from the positive results of the annual accounts for 2016, SUISA is also going to report on the Joint Venture Mint Digital Services, co-founded with SESAC, plus on the developments regarding the copyright revision and the debate on the ‘service public’. By Andreas Wegelin, CEO

To be continued: Our success story, spanning more than 90 years

SUISA founded the Joint Venture Mint Digital Services together with US authors’ society SESAC. The project helps improve the competitiveness of SUISA in the online music market. Shown in the picture: Andreas Wegelin, SUISA CEO (on the left), and John Josephson, Chairman and CEO of SESAC Holding. (Photo: Hannah McKay)

SUISA can look...read more

Swiss Copyright Review: SUISA in charge of a working group

Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Text by Vincent Salvadé

Swiss Copyright Review: SUISA in charge of a working group

The exhibition “Oh Yeah! Pop music in Switzerland” in the Museum for Communication in Berne covered 60 years of Swiss pop culture in the form of a multimedia experience (as pictured). An exhibition such as this would be able to benefit from a simplified rights acquisition via an extended collective licence (ECL). The introduction of such a licence has been one of the issues being discussed regarding a possible review of the Swiss Copyright Law. (Photo: Museum for Communication / Hannes Saxer)

For this purpose, several sub-groups were created; they were tasked with analysing several topics. SUISA was leading one of these sub-groups (working group 1) which focussed on four questions: Introduction of the extended collective licence, governance of the so-called “orphan” works, a possible new exception in copyright for science and the question of secondary publication rights of publicly financed scientific works.

Working group 1 consisted of the following representatives: Authors (Suisseculture), work users (DUN), libraries (BIS), music producers (IFPI), book publishers (SBVV), the Federal Office of Culture and the collective management organisations (Swissperform and SUISA). It was active between October 2016 and February 2017 and achieved the following results:

Extended collective licence

The extended collective licence (ECL) is a legal institution which is common in the Nordic countries, authorising collective management organisations to be active on behalf of all rightsholders as long as the societies are sufficiently representative. The working group holds the view that the ECL brings advantages both to rightsholders and users and consumers alike. It grants the former a remuneration for the mass exploitations of their works and performances, which individuals can hardly control and monitor. For the users, the ECL simplifies that process for obtaining the rights for projects which are connected with several goods protected by copyright (URG, CopA). This is particularly important in our digital age. Finally, the ECL could entail a growth in the number of cultural goods that are offered legally.

The working group has therefore presented a draft for a legal provision to introduce the ECL. It was careful when wording the draft that the legal basis would not be used to licence usages which clash with offers that are individually authorised by the rightsholders. Furthermore, the working group endeavoured to secure the freedom of the rightsholders by providing them with the opportunity to opt out from an ECL if the provisions are unacceptable for them.

Orphan works

Works are referred to as ‘orphan works’ if the rightsholders are unknown or cannot be located. Current legislation contains a provision on orphan works (Art. 22b URG/CopA) which authorises users to obtain the necessary exploitation rights via the licensed collective management organisations if the rightsholders cannot be contacted. This provision is, however, limited to sound and audiovisual recordings.

The working group suggests to expand this solution to all orphan works provided that they can be located in the archives of libraries, schools, museums and other institutions which contribute to the preservation of cultural heritage. It also recommends a solution in such cases where the collective management organisations cannot pay rightsholders after a period of ten years has lapsed: The money would then have to be invested into retirement funds and cultural promotion funds.

Exception for science

The working group is of the opinion that an exception of the exclusive right can be justified if the works are reproduced for scientific purposes by technical processes. These processes are, among others, data processing (text and data mining, TDM) and other similar procedures by means of which works are reproduced automatically in order for specific common features to be identified, for example. The European Union also plans to introduce such an exception.

The working group did, however, not reach an agreement concerning the issue whether this exception should be accompanied by a right to receive remuneration for the affected authors. The authors from the literature sector supported such a move whereas the users pleaded for an exception free of charge.

Technical measures simplify reading and processing of sources for scientists. Reading is a way to enjoy a work free from copyright. SUISA therefore reckons that a right to receive remuneration for the usage of sources in the context of a scientific activity is not advisable. An important factor, however, is to watch out whether the exploitation of the scientific research falls under copyright if this result contains recognisable, protected works. Furthermore, authors’ moral rights must remain unchanged, and the teaching activity must not fall under the new exception as they are already subject to a special regulation pursuant to Art. 19 and 20 URG/CopA (which provides for authors’ remuneration). The proposal of the working group takes these demands into account.

Secondary publication right

Work users, especially academic circles at Universities, wish to change the Swiss Code of Obligations in order to prohibit an author of a scientific work to assign his rights to make a work available to a publisher free of charge if it has been largely funded by the public authorities. It is the aim to allow authors to publish their works for free access on the internet, parallel to the publication by the publisher.

The working group was not able to submit a proposal regarding this issue as the opinions within the group varied too much. For publishers, such a provision would be the same as an actual expropriation and would prevent them from investing in the scientific sector.

What next?

The working group 1 has submitted its proposals to the AGUR12. The latter will discuss them together with other issues affecting the URG review (such as the fight against piracy or private copying). AGUR12 has finally established a supported compromise package where the three proposals described earlier by working group 1 were taken into consideration.

While it had to represent very different parts of the business, working group 1 managed to bring about an approach of the divergent views. This certainly contributed to a growth of the mutual understanding among the parties, and that a compromise could be found. A compromise, whose elements will be anchored in the law sooner or later, or so we hope.

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Second attempt to review the Swiss Copyright Act The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Read more
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“Without an organisation like SUISA many songs would never have been created” The famous and popular musician Peter Reber has been a SUISA member since 1971. In a written interview, the composer, lyricist, artist and publisher explains, why his collective management organisation is important for him and why – from his point of view – it is not necessary that collective management organisations should be subject to a stricter supervision. Read more
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  1. Maruchka says:

    Droit d’auteur – révision
    Je ne suis pas sure d’avoir compris le chapitre ‘pour la science’

    Une petite vraie interrogation/apréhension : où s’arrête l’exception, ‘pour la science’ ?
    peut-on réquisitionner quelqu’un – juste pour la science – ?

    la science c’est des mio de personnes…
    la science ne sait-elle pas aller demander de la même façon, que n’importe quelle personne, qui veut diffuser une oeuvre ?
    si le scientifique aspirait à travailler gratuit, pour sa bonne cause ; reste que prendre c’est voler et obliger c’est très rarement bien.

    suggestion D : le scientifique fait sa demande à l’auteur et lui demande son prix/propose un tarif le scientifique informe l’auteur, qui a 10-15 jours (vs. poste) pour exprimer et exposer un éventuel désaccord et définir un autre tarif, que celui proposé par le scientifique
    + un tarif minimum mentionné dans les articles – calculé en fonction de la valeur ajoutée par l’oeuvre et des tarifs en vigueur dans le secteur du scientifique ou de l’artiste (l’oeuvrier) ; le tarif le plus élevé étant appliqué
    – en effet, dans ce genre de situation, ne faudrait-il normalement demander un audit par l’artiste ou un contrat de travail pour le scientifique-artiste ?
    pourquoi pas ?
    + subventions sont à disposition du scientifique, qui voudrait investir dans une recherche, p.ex. musicale

    Souvenez-vous quand nous montions aux fronton, pour défendre l’idée, le droit à la réflexion.
    Rappelez-vous quand le propriétaire du piano ou des toiles et de la peinture était le propriétaire de l’oeuvre, car l’esprit n’avait que peu de valeur, c’était le bien matériel qui comptait et qui recevait la somme totale des mérites, l’artiste vivant d’amour de son art et d’eau fraîche, rosée
    jusqu’à ce que sa toile ou sa musique finisse par lui rapporter argent…, enfin…, à ceux qui détenaient ses oeuvres ; lui n’ayant pas connu le jeans

    certains sont montés aux barricades, ce ne fut ni simple, ni rapide, peut-être y a-t-il eu des vies risquées mais la raisons a eu le dessus et le droit d’auteur est né, affaiblissant sans doute l’esclavagisme (ancrage du concept)
    cela a pris du temps, pour nous apporter le droit d’auteur, donc, à présent, que nous pouvons en profiter, faut-il vraiment le concéder, sans tenir compte des autres outils et données scientifiques comme un travail artistique ?
    mais pourquoi ?

    Voilà pour la science.

    Par contre se prendre un droit d’auteur sur quelque chose de visible (=/= créé par l’homme), comme par exemple une plante brésilienne brevetée aux USA/par USA c’est inconcevable…

    C’est un sujet qui me tient à coeur… 🙂

    • Nicolas Pont says:

      La restriction en faveur de l’utilisation à des fins scientifiques a été notamment conçue pour favoriser la fouille de textes et de données (text and data mining ou TDM).

      Il s’agit par exemple de pouvoir analyser et découvrir d’éventuels liens entre les nombreuses publications scientifiques, afin de trouver de nouvelles pistes de recherche, notamment dans le domaine de la médecine.

      Sans restriction en faveur de l’utilisation à des fins scientifiques, les chercheurs devraient, pour fouiller et compiler des extraits de textes, demander l’autorisation préalable des auteurs de ces textes, protégés par le droit d’auteur. Cela n’est tout simplement pas possible d’un point de vue pratique.

      SUISA est favorable à la restriction, qui ne devrait toutefois que peu concerner les oeuvres musicales.

      Ce qui se fait dans le secret du laboratoire du chercheur est difficilement contrôlable et il est donc également complexe de faire valoir un droit d’auteur sur cet acte.

      En revanche, il est capital que le résultat de la recherche scientifique ne puisse pas être exploité librement, s’il reproduit des oeuvres protégées. Les auteurs de ces oeuvres protégées doivent avoir leur mot à dire sur cette exploitation et avoir les moyens de demander une rémunération. C’est l’une des priorités de SUISA.

      L’exception pour la science ne doit pas concerner l’enseignement, y compris dans les universités, puisque la loi prévoit un droit à rémunération en faveur des auteurs dans ce cadre. Ce droit à rémunération fait l’objet du tarif commun 7, lequel ne doit pas être touché par une exception pour la science. C’est l’autre priorité de SUISA.

      Nicolas Pont / Service juridique SUISA Lausanne

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Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Text by Vincent Salvadé

Swiss Copyright Review: SUISA in charge of a working group

The exhibition “Oh Yeah! Pop music in Switzerland” in the Museum for Communication in Berne covered 60 years of Swiss pop culture in the form of a multimedia experience (as pictured). An exhibition such as this would be able to benefit from a simplified rights acquisition via an extended collective licence (ECL). The introduction of such a licence has been one of the issues being discussed regarding a possible review of the Swiss Copyright Law. (Photo: Museum...read more

The fight for the copyright review gets tougher

Dear members, the Swiss Federal Council launched the consultation for a draft to review copyright in December 2015. The draft followed the recommendations by AGUR12. However, further proposals were added from the administration and as a result of parliamentary initiatives. By Vincent Salvadé, Deputy CEO

The fight for the copyright review gets tougher

SUISA continues the fight for copyright and is getting ready for the digital future at the same time: Together with the US-American collective management organisation, SESAC, it founded Mint Digital Licensing, a joint venture issuing online licences. (Photo: ScandinavianStock / Shutterstock)

The draft was welcomed with keen interest, reflected by as many as 1,224 statements submitted during the consultation process. Unfortunately, they highlighted the fundamental differences in opinion. Something that had been expected: There are inherent risks when moving away from the compromise of the AGUR 12 (a working group on copyright that had been set up by Federal Councillor Simonetta Sommaruga in 2012) in the context of an issue as disputed as copyright.

Copyright review: The devil is in the detail

At the end of 2016, Ms Sommaruga asked the same working group to transfer their suggestions into legislative provisions and, where necessary, submit further compromise proposals. It probably was the best that could have been done, even though another option could have been to instruct an expert committee with such editorial tasks: As we all know, the devil is in the detail …

Furthermore, a neutral expert committee could have increased the legitimacy of the proposals of AGUR12. But SUISA which is represented in the working group, will join into this second round.

Cooperation with the American organisation SESAC

Given the circumstances, the plan of a stricter Federal supervision on collective management organisations is not likely to be pursued further. This is good news. After all, the future is digital, and the rights management for online usages of music follows competition rules at the instigation of the European Union.

SUISA takes the new circumstances into account and has created a joint venture, Mint Digital Licensing, together with the American organisation SESAC. Yes, dear members, your eyes didn’t deceive you: The rightsholders in the USA are interested in SUISA’s know-how and the technology so that they can manage their rights in Europe! This implies investments, innovative spirit, additional responsibility and all the risks that a free market entails. Any interference by the government would not have been appropriate in this context.

Yet, the fight for the copyright review can be expected to get tougher. We will have to prove to the market and to consumers that collective management organisations do not just claim money from them. We must show that we create the necessary legal certainty by enabling them to acquire the rights in a simple process and at a fair price for all. The fight has not been won yet – but it’s worth being fought!

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Dear members, the Swiss Federal Council launched the consultation for a draft to review copyright in December 2015. The draft followed the recommendations by AGUR12. However, further proposals were added from the administration and as a result of parliamentary initiatives. By Vincent Salvadé, Deputy CEO

The fight for the copyright review gets tougher

SUISA continues the fight for copyright and is getting ready for the digital future at the same time: Together with the US-American collective management organisation, SESAC, it founded Mint Digital Licensing, a joint venture issuing online licences. (Photo: ScandinavianStock / Shutterstock)

The draft was welcomed with keen interest, reflected by as many as 1,224 statements submitted during the consultation process. Unfortunately, they highlighted the fundamental differences in opinion. Something that had been expected: There are inherent risks when moving away from the compromise of the AGUR 12 (a...read more

Second attempt to review the Swiss Copyright Act

The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne Convention of 1879 was the first international Treaty on copyright. Today, nothing is left of the pioneering role Switzerland once held.

Quite the contrary: The existing Swiss copyright law was enacted after 30-year-long discussions upon the pressure by the USA on 01 July 1993. Important trade agreements with the USA would otherwise not have been possible to implement. A similar situation occurred during the partial review of the Act in 2006.

An adaptation of the copyright law to technological developments is now due. The European Union has also been holding discussions on this topic for a while. On 14 September 2016, the European Commission has tabled a proposal for a directive on copyright in the digital single market. In the EC directive, current problems such as “liability of internet service providers” were addressed at least.

Review of the Swiss Copyright Act 2011 launched

In Switzerland, the progress made by the review of the Copyright Act and the alignment of the legislative provisions to the current exploitation forms in the digital world has been rather sluggish. To recap: The trigger for the current conversations on an update of the Swiss Copyright Act had been the reply by the Federal Council in August 2011 to a Postulate by the Ständerätin (Councillor for the Council of Cantons) Géraldine Savary.

At the time, the Federal Council was of the opinion that Existing legal provisions would satisfy current options for digital usage. Authors would have to exploit the existing legal possibilities more thoroughly and equalise their lost income from internet piracy by other means: for example by giving more live concerts, in order to offset the lower income from sales of sound recordings.

This type of reply led to an outcry among the rightsholders. Known authors and musicians, specifically from the rock/pop sector, joined forces under the umbrella of the powerful association “Music Creators Switzerland”. The producer associations Audiovision Schweiz and IFPI founded the “Alliance against internet piracy”, together with the collective management organisations and other partners.

The AGUR12 Compromise

Federal Councillor Sommaruga finally gave in to the concerted demands for measures to be taken: In the summer of 2012, she initiated the working group copyright 2012. The “AGUR12” had the following task: “Show options to align copyright law with the technological developments. These include identifying and remedying of usage limitations and competitive barriers, guaranteeing a fair and adequate remuneration for the usage of content protected by copyright and the fight against piracy. On the other hand, collective management must be evaluated in terms of identifying areas for increasing efficiency and lowering costs.”

At the end of 2013, AGUR12 closed their project with recommendations which were carried by all participants. One could thus call it an “AGUR12 compromise”. The demand for implementing the recommendations remained an evident topic for the Federal Council: Subsequently, various circles submitted proposals to the parliament which were answered by the Federal Council referring to the impending legal review and thus postponed to a later date.

Preliminary draft and consultation

In December 2015, the Federal Council presented a preliminary draft for the legal review, which entered the consultation process until the end of March 2016. What was particularly bothersome with this preliminary draft was the fact that while it followed the recommendations of AGUR12, further proposals from administration itself had been added; for example, a more extensive and stricter supervision over collective management organisations. SUISA replied with an extensive statement and provided specific wordings for improving the legislative text.

More than 1,200 statements and opinions were submitted during the consultation process. Those from libraries and archives (about 400) all have the same message. They demand simple possibilities to make their archives accessible. When it comes to rights exploitation issues, they blame the collective management organisations for any difficulties that arise in this context. It is, however, the latter who enable certain usages by bundling rights together.

AGUR12 II initiated

The Federal Councillor in charge had to realise this summer that the consultation draft was coming under fire from all corners and was still far away from a solution carried by the majority. She therefore wishes to offer the affected parties to find a solution that can be carried before the Federal Council can decide on the next steps in the legislative process.

On 30 August 2016, Federal Councillor Sommaruga thus initiated the working group AGUR12 II. The working group has now got additional stakeholders, representing the interests of internet providers and experts from the Federal Office for Justice. AGUR12 II is thus tasked with working out specific legislative proposals in line with the compromises determined by AGUR12, which have been in place for more than 2 years now.

The new AGUR12II has, in the meantime, started with its activities. In the first meeting, it became apparent that the members deal with the different interests and positions in a focussed and constructive manner. As a consequence, further sub-groups were created with the aim to prepare specific legislative proposals in a smaller but representative circle. The results are expected to be ready by the end of 2016.

Legal review thrown back by 30 months

Collective management organisations are active on behalf of authors within the AGUR12 II working group. Their representatives hold the necessary legal knowledge in order to formulate legislative provisions. A modernised copyright with fair framework conditions for rightsholders is one of the core aims of the Cooperative Society for Authors and Publishers of Music: SUISA readily offers its expert knowledge and collaborates actively in the working group.

By initiating the AGUR12 II working group, the copyright legislation review in Switzerland has been set back by 30 months. Back to square 1, where AGUR12 finished with its recommendations at the end of 2013. One can’t help but get the impression that the government’s ideas on trade and agricultural policies are clearer than those on copyright. That is a real shame, even more so when Switzerland, as a veritable nation of culture, once excelled as a pioneer of the rights for the protection of authors.

Related articles
Copyright: Quo vadis? In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Read more
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The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne...read more

Copyright: Quo vadis?

In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Text by Vincent Salvadé

After a partial review in 2008, it is planned to review the Swiss Federal Act on Copyright and Related Rights once more. (Photo: Manu Leuenberger)

SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Some suggestions of the draft for the copyright revision now need to be criticised, while others endanger the compromise that other interested circles have reached.

Three areas need to be given particular attention:

Private copying

In Switzerland, the copying of works for private purposes is usually allowed by law and is also remunerated via a levy on blank media. The major advantage of this system is that it does not criminalise consumers, something that AGUR12 also reiterated. The relevant remuneration and levies do, however, have to be constantly adapted to the current circumstances.

At the same time, private copying has been undergoing change. In the music sector, downloads have increasingly been replaced by streaming. Nowadays, music is being listened to online instead of downloaded. While listening to music, the copying process on the end device of the consumer (smartphone, tablet etc.) now only stretches over a very short period. The permanent reproduction takes place elsewhere, on remote servers (key word: “Cloud computing”).

SUISA believes that neither current legislation nor the draft of the URG (CopA) revision accommodates the new developments appropriately. SUISA is thus going to submit modernising suggestions in the course of the consultation.

Collective rights management

The Federal Council plans to extend the supervision of collective rights management, namely at two levels: On the one hand, the supervision shall comprise the entirety of activities of collective management organisations (CMOs), irrespective of which sector they cover; on the other hand, the Swiss Federal Institute of Intellectual Property (IPI) shall not only check the legality of rights management but also its adequacy in future.

CMOs have been founded by rightsholders in order to defend their rights. As a consequence, only rightsholders should be able to decide on the operation of its CMOs. The planned expansion of the supervision would be problematic from a constitutional law aspect.

In order to safeguard a correct collective rights management, today’s controls are more than adequate: first, by the members via the society’s internal bodies and committees, second, via external auditors, third, via the IPI which is confined to the legality of the administration and areas with a dominating market position of CMOs, and fourth, via tariffs which are controlled by the Federal Arbitration Commission for the Exploitation of Copyright and Related Rights.

Why should the government thus interfere in the personal transactions of authors and other rightsholders? The affected parties had not requested anything to this end. Furthermore, a recently published expert analysis which has been published on behalf of the IPI confirmed that CMOs work efficiently and have their costs under control. As a consequence, this kind of expansion of the supervision by the government must be rejected.

On the other hand, SUISA welcomes the suggestion by the Federal Council that an extended collective licence should be introduced in Switzerland. This is a type of statutory provision which is already known in Nordic countries. Thanks to the collective licence, the CMO could represent rights holders which are not members. For such rightsholders, licensing agreements which have been concluded between CMOs and users of works shall apply unless they explicitly pull out from such agreements (“opt out”). It would thus be possible to legalise the mass usage of works – something that is paramount in the digital age – in order to be able to pay rightsholders their due remuneration. The latter do, however, continue to have the freedom to opt out from such licensing agreements.

Anti-piracy measures

SUISA supports the measures suggested by the Federal Council to combat piracy. They are the result and an important component of the compromise of AGUR12. The proposals are based on the contributions of the access and host providers. They would have to delete illegal contents under certain conditions, prevent such contents from being re-uploaded, to block access to piracy sites or to point their action out to relevant users in the case of copyright infringements.

This type of system does, however, mainly rely on self-regulation. SUISA therefore believes that the law should have a higher minimum standard than provided in the legislative proposal. In addition, certain measures are only possible if the works are already on the market in Switzerland. In other words: Illegal online offers of a film which is not available in Switzerland yet, would be less severe than in the case of a DVD which can already be purchased anywhere in the shops… The desire of the consumer to get access to a bigger number of legal offers is understandable. In this context, innovative enterprises do, however, have to be protected from unfair competition by illegal providers.

There is another gap: If the explanatory notifications by the access providers to the infringer bear no fruit, the rights holder could use legal means to find out about the identity of the illegal providers. In order for this step to be available, two such notifications must turn out to have been futile within a year. In other words: Rights holders are asked to tolerate the infringement of their rights for a whole year, before intervening steps are taken … This is hardly acceptable.

Conclusion

The impression prevails that the Federal Council has taken the recommendations of AGUR12 on board but then complemented them ad lib. It surely is a good thing that political visions influence the development of copyright to a degree. On the other hand, copyright repeatedly finds itself as the focal point of various interests: those of authors, consumers, the industry etc.

The compromise established by AGUR12 has the advantage that it safeguards a balanced development of the legal framework – which has been accepted by the affected parties. It is thus vital that this compromise is not put at risk. Otherwise, the CopA review is in danger of getting stuck …

Additional information:
SUISA works cost efficiently (SUISAblog, 13.01.2016)
SUISA members’ freedom is at stake (SUISAblog, 20.11.2015)

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In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Text by Vincent Salvadé

After a partial review in 2008, it is planned to review the Swiss Federal Act on Copyright and Related Rights once more. (Photo: Manu Leuenberger)

SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Some suggestions of the draft for the copyright revision now need to be criticised, while others endanger the compromise that other interested circles have reached.

Three areas need to...read more