Switzerland Hopes New Law Will Keep it Off U.S. ‘Pirate Watchlist’

In a few weeks, the Office of the United States Trade Representative (USTR) will publish its yearly Special 301 Report, highlighting countries that fail to live up to U.S copyright protection standards.

In recent years Switzerland was among countries that were placed on the ‘Watch List.’ In 2017, the US reported that the Swiss had made some progress, but not enough. Its policies towards online piracy were not up to par, according to U.S. standards.

“Switzerland remains on the Watch List this year due to U.S. concerns regarding specific difficulties in Switzerland’s system of online copyright protection and enforcement,” USTR wrote in its Special 301 Report.

One of the key issues the United States identified is the lack of enforcement against hosting companies that do business with pirate sites. Branding these as a “safe haven” for pirates, the US called for suitable countermeasures.

A second problem that was highlighted is the so-called ‘Logistep Decision.‘ In 2010 the Swiss Federal Supreme Court barred anti-piracy outfit Logistep from harvesting the IP addresses of file-sharers. The Court ruled that IP addresses amount to private data, and outlawed the tracking of file-sharers in Switzerland.

According to the USTR, this ruling prevents copyright holders from enforcing their rights, and they called on the Swiss Government to address this concern as well.

Today nearly a year has passed and it looks like the recommendations were not ignored. In a letter to the USTR, the Swiss Government writes that the two main complaints are dealt with in their new copyright law, which was introduced late last year.

“The draft bill, adopted by the Federal Council at its meeting on November 22, 2017, addresses both of those concerns. It aims at further modernizing Swiss copyright law for the purposes of the digital environment and steps up the fight against Internet piracy,” the Swiss write.

The new copyright law addresses the hosting problem by introducing a “take-down-and-stay-down” policy. Internet services will be required to remove infringing content from their platforms and prevent that same content from reappearing. Failure to comply will result in prosecution.

“The ‘stay down’ will prevent rogue websites from being hosted in Switzerland and will make the fight against Internet piracy more effective and sustainable. That should put an end to criticism directed against Switzerland as a host country for infringing sites,” Switzerland informs the U.S.

Similarly, the Logistep ruling will no longer be an issue either if the country’s new copyright law is implemented.

“[T]he draft bill clarifies that the processing of data for the purposes of prosecuting copyright infringement is permissible. With that, it puts an end to the debate that followed the Logistep decision about the extent to which the recording of IP addresses for prosecution purposes is admissible.”

Many copyright holder groups have also asked for ISP blocking of pirate sites, but Switzerland notes that this idea is off the table for now. There is not enough support in Parliament for an Internet blocking provision which may jeopardize acceptance of the entire draft bill, their letter explains.

While not mentioned in the letter, downloading and streaming copyright infringing content for personal use also remains unpunished, video games and software excepted. Uploading and other types of distribution of infringing content are not permitted, however.

Still, the Swiss hope that the newly proposed changes to its copyright law will be enough to have it removed from the Special 301 Watch List.

“Switzerland is confident that the revision of the Swiss Copyright Act will more effectively address the challenges posed by the Internet,” the Swiss Government writes, adding that it “looks forward to continuing to work with the U.S. to further clarify any issue relating to online piracy.”

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Switzerland’s letter to the United States Trade Representative is available here (pdf).

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