Tag Archives: Extended collective licence

Adapting federal copyright law to digital usage

On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? Text by Andreas Wegelin

Adapting federal copyright law to digital usage

In the EU member states, the reform of copyright law has driven mainly young internet users to protest on the internet and in the streets. Fired up by social media platforms, it is alleged that freedom of expression was seriously at risk because of the new copyright. (Photo: Emmanuele Contini / NurPhoto via Getty Images)

On 12 March 2019, a few days before the decision of the EU Parliament, the Council of States referred the bill for the revision of Swiss copyright law back to the advisory Committee for Science, Education and Culture (CSEC) with instructions to take into account current developments in the EU.

Despite the carefully balanced compromise fostered in the Working Group on Copyright (AGUR) by Federal Councillor Sommaruga, Minister of Justice at the time, the copyright law revision is now threatened by further delays, not to mention the risk that special interests, which had been set aside as part of the compromise, may surface anew.

The main revisions in the EU Directive

The European Directive contains two fundamental improvements in copyright protection which are particularly controversial:

the liability of platform providers for the sharing of content uploaded by consumers
This provision mainly concerns the major social media platforms (Google, Apple, Facebook and Amazon, or GAFA for short). Under existing EU law, platform operators can argue that they are merely service providers and are not responsible for the content made available on their platforms. This position is rooted in the EU’s e-commerce directive of 2000, which had limited the liability of service providers (under what was termed the “safe harbour” principle) with a view to stimulating the digital economy.

In the meantime, it has been rightly recognised that the uploading of protected content by private persons infringes copyrights. Even providers such as Google have sought contact with major rights owners and collecting societies because of Youtube, but only offered financial compensation on a “voluntary” contractual basis. It is precisely because content-sharing platforms like Youtube make available practically all existing content that they are so popular with growing numbers of music and film enthusiasts.

Article 17 of the new Directive (Article 13 of the original draft) provides that EU Member States must enact rules stipulating that service providers are liable for the content shared (uploaded) on their platforms.

As a result, GAFAs will be obliged either to conclude licence agreements with all rightholders, or to introduce technical mechanisms (upload filters) to prevent altogether the uploading of protected content. It was this latter prospect which inflamed the Internet community and led to demonstrations in front of the EU Parliament against what was feared would lead to drastic restrictions on the freedom of expression and artistic freedom.

Protecting press publishers from the publication of their articles on internet platforms
Article 15 (formerly 11) of the new Directive also proved very controversial in the parliamentary debates. The proposed neighbouring rights protection was designed to grant publishers a participation in the dissemination of their content, e.g. on Google News. Interestingly, however, the simple reference to Google News can serve to increase a press publisher’s reach, and news per se cannot be protected by copyright. Similar regulations in individual EU countries have proved ineffective, particularly because major publishers prefer to benefit from free advertising on Google News rather than threaten Google News with a licence claim and risk being ignored.

The key points of the Swiss revision

Different legal situation compared to the EU
The Federal Copyright Act (FCA) and Switzerland’s legal situation are considerably different to EU law and the copyright legislation of the individual EU Member States. The EU Directive of 2000 on the single market is not applicable in Switzerland. GAFAs cannot invoke the “safe harbour” principle here. In principle, platform operators are already liable for the content shared by their users, but enforcing a liability claim is a complex and hazardous process. Switzerland’s copyright legislation also recognises the principle that, relying on private copying rules, consumers are entitled to use content from the Internet regardless whether or not the source is licensed to make it available. This liberal approach reflects the acknowledgement that only the provider can reasonably license the mass consumption of content from the Internet, certainly not the consumer.

The AGUR compromise
The AGUR compromise was adopted in March 2017 in the context of the Swiss legal framework described above. Relying on that compromise – which contained some grey areas disadvantageous to authors – the Federal Council submitted a revised bill to Parliament. The bill contained a “stay down” obligation designed to reinforce the liability of online content-sharing service providers: once content is qualified as illegal, providers must keep it off their platforms permanently. In addition to other important improvements for authors, which we have already reported elsewhere, the Federal Council’s proposal contains changes for digitisation, such as a “scientific” exception or limitation for text and data mining, and licensing simplifications through extended collective licensing. The last two proposals are also part of the recently adopted EU Directive (Articles 4 and 12).

Remuneration for journalists and neighbouring rights for publishers
On 12 February 2019, the Committee of the Council of States proposed to introduce an entitlement to remuneration for journalists and neighbouring rights protection for publishers whose work is used on Internet platforms. The introduction of an entitlement to remuneration for journalists would certainly be welcome, and might even suffice if journalists, as the original creators, would involve their publishers in the claims. This would avoid having to introduce a controversial neighbouring right with the dubious effect described above.

Exception for libraries
At the last minute, the Committee of the Council of States also proposed to exempt public libraries from the obligation to pay remuneration for the rental of works – a provision in force since 1993. Public libraries lobbied actively for this exemption; under the existing tariff, libraries do not have to pay a fee on the rental of works provided they charge an annual fee rather than individual fees when they rent out works. Whatever the case, the truth of the matter is that libraries make books, DVDs, CDs or music streaming available to their users for a small fee, in competition with the markets concerned.

Exception for reception in hotel and guest rooms
As with public libraries, the exception for guest rooms deviates from the AGUR compromise to the detriment of authors. Intensive lobbying by the hospitality industry had already led the National Council to propose an exception for the reception of programmes in hotel rooms and holiday flats in December 2018. Moreover, the exception was extended to rooms in institutions and prison cells. This demand also stems from a tariff dispute with the collecting societies. In 2017, the Federal Supreme Court ruled that the use of works in such premises did not qualify as private use if the hotelier or landlord arranges reception and makes the corresponding equipment available. In this case, both are acting with the intent of making a profit, i.e. the provision of reception facilities for protected content is a sales argument for landlords and influences their turnover. Artists should not be required to subsidise the hospitality industry through this exception; their situation would then be significantly worse than under existing copyright law.

Switzerland needs updated copyright legislation now – without any new exceptions!

Switzerland has been struggling to modernise its copyright law since 2010. The AGUR compromise made some progress in adapting the law to the contemporary environment. Individual interests that run counter to this modernisation are liable to emerge in parliamentary debates and may even lead to a worsening in the existing law. This must not be allowed to happen. The situation is somewhat different for journalists: the re-use of press products on the Internet must be seriously examined when the law is updated. Maybe the time is not yet ripe. This was also acknowledged by the Committee of the Council of States in its second consultation on copyright law on 29 April, and it called on the Federal Council, by way of a postulate, to examine the development of copyright law in Europe.

In its 2019 summer session, Parliament would be well-advised to adopt the copyright law revision on the basis of the AGUR compromise without any new exceptions for public libraries or the hospitality industry.

Cautious take-over and adaptation of the EU Directive to Swiss specificities

The new EU Directive could nevertheless serve as a model for additional changes to Swiss law in the future. As mentioned above, the CSEC of the Council of States has asked the Federal Council to produce a report on the situation of journalists and newspaper publishers in particular; in this context, the liability of online content-sharing service providers should be examined more closely. What is more, the sharing or uploading of protected content on the Internet is even less controllable than private copying. The EU Directive therefore rightly establishes a liability on the part of GAFAs, because they are the ones who make sharing possible and attractive in the first place. However, it will be difficult for GAFAs to license each uploaded contribution from the individual rightholders.

One option might be to oblige the platforms to remunerate rightholders on a lump-sum basis for the sharing of content on their platforms. Anything demanding unreasonable technical effort to control should generally be allowed; on the other hand, online content-sharing service providers would be obliged to compensate authors and other rightholders via the collecting societies under a legal licence similar to private copying. In the next few years, the Swiss Parliament will have to revisit these issues again in more depth with a view to implementing the EU Directive across the borders.

Post-revision is pre-revision

Swiss copyright legislation is likely to remain a work in progress for some time to come. Digitisation, the easy global exchange of protected works on the Internet, and technological advances such as artificial intelligence or machine learning mean that legal standards will have to be reviewed again. The current revision of Swiss copyright law, hopefully to be completed in June 2019 based on the AGUR compromise, is not final but merely the prelude to the next revision.

Related articles
Copyright law revision: compromise is the key to success – no exceptions for hotel roomsCopyright 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. Read more
When SUISA does politicsWhen SUISA does politics SUISA and the other Swiss rights administration societies have never been as actively involved in politics as in 2018. But is it really justified for SUISA to become engaged in politics? The revision of copyright law certainly has something to do with SUISA’s political engagement. But the rights administration societies have also taken a stand on numerous other issues: the “No Billag” initiative, gambling legislation, revision of telecommunications law, various parliamentary motions and initiatives, etc. Read more
Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their worksCopyright Act Review: Authors and publishers must benefit more from the online exploitation of their works 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. Read more
Collapse article

Leave a Reply

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.

Your email address will not be published.

On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? Text by Andreas Wegelin

Adapting federal copyright law to digital usage

In the EU member states, the reform of copyright law has driven mainly young internet users to protest on the internet and in the streets. Fired up by social media platforms, it is alleged that freedom of expression was seriously at risk because of the new copyright. (Photo: Emmanuele Contini / NurPhoto via Getty Images)

On 12 March 2019, a few days before the decision of the EU Parliament, the Council of States referred the bill for the...read more

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.

Related articles
When SUISA does politicsWhen SUISA does politics SUISA and the other Swiss rights administration societies have never been as actively involved in politics as in 2018. But is it really justified for SUISA to become engaged in politics? Read more
No adequate share for audiovisual artists regarding video on demand and streaming successNo 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. Read more
Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their worksCopyright Act Review: Authors and publishers must benefit more from the online exploitation of their works 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. Read more
Collapse article

Leave a Reply

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.

Your email address will not be published.

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

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.

Related articles
Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their worksCopyright Act Review: Authors and publishers must benefit more from the online exploitation of their works 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. Read more
Blockchain – an ending or future for collective management organisations?Blockchain – an ending or future for collective management organisations? Dear members, everyone in the music industry is talking about “Blockchain” at the moment. But it’s not easy to find anyone who can explain in simple terms what it’s all about … Read more
Changes to the distribution of collections for internet useChanges to the distribution of collections for internet use New distribution keys will be used for the distribution of collections for internet use (audio and video on demand offers). For downloads, a new key of 25% for performing rights and 75% for reproduction rights shall be applied. For streaming, the split shall consist of 75% performing rights and 25% reproduction rights. Read more
Collapse article

Leave a Reply

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.

Your email address will not be published.

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

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.

Related articles
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
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. Read more
“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
Collapse article
  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

Leave a Reply

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.

Your email address will not be published.

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

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)

Collapse article

Leave a Reply

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.

Your email address will not be published.

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