US driven change to Swiss copyright legislation

In late 2017 Switzerland proposed a new draft bill on copyright, which offers a more robust approach to copyright infringement. A part of that law is that an internet service provider (ISP) can now be served with a "take down and stay" notice, which not only compels them to remove infringing content, but also imposes a positive duty to ensure that it does not reappear via their servers.

The purpose of the law is an attempt to get Switzerland off the United States Trade Representative's Special 301 Report (colloquially known as the 'Pirate Watchlist'), which identifies countries that do not provide adequate copyright protection in the eyes of the US.

Switzerland has been among those countries in recent years, caused in part by a 2010 decision of its federal court that ruled that IP addresses were "personal data" and were therefore protected from data harvesting practices.

In spite of this proposed new legislation, Switzerland is lagging behind the current trend of site-blocking by ISPs. Groups holding copyrights have been asking for pirate sites to be blocked by individual users' ISPs at source, but there is a feeling that there is insufficient support in Swiss Parliament to enact such a measure.

The draft bill also does not introduce punishment for downloading or streaming infringing material for personal use, except video games and software.

The draft bill certainly does not go as far as the US (or indeed many rights holders) would like, but Switzerland will be hopeful that it is sufficient to have them taken off the 'Pirate Watchlist'.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.