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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.

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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.

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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

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

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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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
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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

Swiss music lives thanks to SRG’s special interest stations

The Transport and Telecommunications Committee of the National Council has moved to close down six SRG special interest stations and has filed a motion in this sense. For Swiss music creators the consequences would be devastating. These stations are precisely those that play and promote local Swiss music. Sign the online petition “Hands off special interest stations” now! Text by Giorgio Tebaldi and Manu Leuenberger

Swiss music lives thanks to SRG's special interest stations

From the streets of Berne to the stage of the Kulturfabrik in Lyss: The band Troubas Kater performing in dialect appears during the 14th edition of “8×15.” in November 2015. At each of these concert evenings of SRF Virus, 8 Swiss bands can present their talent, and be discovered by the audience in a 15-minute slot. (Photo: SRF)

At the Swiss Music Awards in February 2017, the Zurich duo Dabu Fantastic and their co-composer Gianluca Giger were awarded prizes for the best hit and best composition. The Zurich band is currently one of Switzerland’s most successful pop acts. According to singer Dabu Bucher in a recent interview with SRG (Swiss Broadcasting Company), the band owes its popularity in great part to the SRG radio stations. SRF Virus first played its songs over 10 years’ ago, actively encouraging the band’s career.

The SRG youth station is important for other Swiss artists too. It serves as a springboard for young and (still) unknown musicians. The station provides an important platform for newcomers, through its “8×15.” concert broadcasts for example. 50% of the music broadcast by SRF Virus is Swiss music. Hardly any other station offers its audience so large a proportion of local music.

But if the Transport and Telecommunications Committee of the National Council has its way, that will soon be over. In Motion 17.3010 for a “Reduction in special interest radio stations”, the Committee asks for six SRG radio broadcasting stations to be closed: SRF Virus, SRF Musikwelle, Radio Swiss Classic, Radio Swiss Jazz, Radio Swiss Pop and the French-speaking station Option Musique. According to the motion, these stations “do not perform any true public service mission”.

Public service also means promoting Swiss cultural creation

In its “Report on the revision of the definition and provision of the SRG public service taking into account private digital media”, the Federal Council reviewed the meaning of public service in radio and television broadcasting. In its report, the Federal Council pointed out that the SRG provides “numerous unprofitable services in the interest of society”. These services include promoting Swiss films, Swiss music and Swiss literature. This would hardly be possible without reception fee revenues.

Special interest stations extensively promote Swiss music – pop and rock as well as jazz on SRF Virus, and classical and especially folk music on SRF Musikwelle. As SUISA claims on its website, altogether 22% of the music played on the six special interest stations is Swiss, as against 20% overall for all the SRG stations. By comparison, Swiss private broadcasters play less than 10% of Swiss music on average.

Special interest stations discover and promote Swiss music

Special interest stations are instrumental in discovering and promoting Swiss music. Their reporting about the current Swiss music scene is irreplaceable. It is difficult to imagine private broadcasters throwing themselves into the breach left by closing the special interest stations. Private broadcasters are guided by profit-making principles and are primarily financed by advertising. Therefore, they have to gear most of their programming to an audience which wants to hear hits. Swiss musicians hear this all the time in statements like:  “we don’t make the hits, we just play them”, says singer-songwriter Christoph Trummer, President of the association Musikschaffende Schweiz (Swiss Musicians), in an interview with Musikmarkt, the music magazine.

Closing down the special interest stations would also affect Swiss music creators financially. Between them, the six stations played about 550,000 minutes of music by Swiss authors in 2015. According to SUISA’s 2015 annual report, the licence fees for SRG radio stations average CHF 2.70 per minute of playing time. Thus, broadcasting royalties for the works of Swiss composers, lyricists and publishers on the six SRG special interest stations totalled about CHF 1.5 million. This money does not only go to well-established stars, it also goes to unknown Swiss artists.

Favorable framework conditions for Swiss culture

The motion of the Transport and Telecommunications Committee if accepted would have serious implications for the Swiss music scene. Not only would Switzerland lose these important platforms for showcasing the broad diversity of Swiss musical creation, closing down the special interest stations would have significant financial consequences for artists.

Moreover, one substantive question remains to be answered: is it truly Parliament’s role to decide on broadcasting content? Should the legislative not confine itself to setting the framework conditions for radio and television broadcasters? The proposed motion seeks to decide the fate of individual SRG stations. This goes far beyond setting framework conditions. Swiss music creators have more than deserved favorable framework conditions in their own country.

SRG has been operating «mx3 – The Swiss Music Portal» since 2006. Musicians can use the portal www.mx3.ch to present their music to the public; the SRG stations use the portal for their programming. SRF 3, SRF Virus, Couleur 3, Rete Tre and Radio Rumantsch include songs that musicians have uploaded onto mx3 in their broadcast programming. In 2015, about 22,900 bands showcased their music on the mx3 portal.

Petition: Hands off special interest radios!

The purpose of this petition is to ask the competent parliamentary bodies not to close SRG’s special interest stations.

Sign the online petition “Hands off special interest stations” at www.petitionen24.com

Sie können die Petition auch auf dem Unterschriftenbogen unterzeichnen (PDF).

The petition is sponsored by a broad interest group representing the Swiss music scene. Among others, the following stakeholders support the petition: Schweizer Musikrat, Musikschaffende Schweiz, Schweizer Musiksyndikat, Schweizer Tonkünstlerverein, Schweizerischer Musikerverband SMV, Helvetia Rockt, IndieSuisse, IFPI, Schweizer Interpretengenossenschaft SIG, Orchester.ch, Eidgenössischer Jodlerverband EJV, Schweizerischer Blasmusikverband SBV, Schweizerische Chorvereinigung SCV, Verband Schweizer Volksmusik VSV.

Every single signature counts and is important to ensure that radio stations like Radio Swiss Pop, Radio Swiss Classic, Radio Swiss Jazz, Radio SRF Virus, Radio SRF Musikwelle and Radio RTS Option Musique can continue to broadcast and help audiences discover Swiss music. Further information is available on the petition initiators’ website: www.prospartenradio.ch

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The Transport and Telecommunications Committee of the National Council has moved to close down six SRG special interest stations and has filed a motion in this sense. For Swiss music creators the consequences would be devastating. These stations are precisely those that play and promote local Swiss music. Sign the online petition “Hands off special interest stations” now! Text by Giorgio Tebaldi and Manu Leuenberger

Swiss music lives thanks to SRG's special interest stations

From the streets of Berne to the stage of the Kulturfabrik in Lyss: The band Troubas Kater performing in dialect appears during the 14th edition of “8×15.” in November 2015. At each of these concert evenings of SRF Virus, 8 Swiss bands can present their talent, and be discovered by the audience in a 15-minute slot. (Photo: SRF)

At the Swiss Music Awards in February 2017, the Zurich...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.

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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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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 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