Law and Information

The Swiss Federal Government has been working for more than four years on a partial revision of the Swiss Copyright Act to bring it in compliance with the WIPO Copyright Treaties. Recently, the Federal Council requested the Federal Department of Justice and Police to carry out a consultation regarding the draft of the copyright law revision. The pre-draft of the amendments has been published in German, French and Italian, but – unfortunately – not in English. The draft, among other issues, suggests controversial provisions on the protection of technological measures such as copy and access control technologies, aimed at implementing Art. 11 WCT and Art. 18 WPPT.

In the context of an ongoing research project at the Berkman Center for Internet & Society at Harvard Law School and the Research Center for Information Law at the University of St. Gallen, I translated the relevant parts of the pre-draft on technological protection measures:

“Title 3a: Protection of technological measures and of rights-management information

Art. 39a (new) Protection of technological measures

1 Technological measures for the protection of works of literature and art in terms of Article 2 as well as the protection of subject-matter according to the Third Title may not be circumvented until the expiration of their respective copyright terms.

2 Protected against circumvention are technologies and devices such as access and copy controls, encryption, scrambling or other transformational mechanisms applied by the rightholder or the exclusive licensee, respectively, in order to prevent or restrict unauthorized acts in respect of works and other subject-matter.

3 Prohibited are the manufacture, import, offer, sale or other distribution, rental, extension of use to others, the advertisement for sale and the possession for commercial purposes of devices, products or components as well as the provision of services, which:

a. are the subject of sales promotion, advertisement or marketing for the purpose of circumvention of technological measures;

b. have only a limited commercial purpose or use other than the circumvention of technological measures; or

c. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of technological measures.

4 The prohibition of circumvention cannot be enforced against persons who undertake the circumvention for the sole purpose of a statutorily permitted use.

Art. 39b (new) Obligations of Users of technological measures
1 Any person who protects works or other subject-matter by technological measures shall:

a. declare in a clearly visible manner the properties of the measure and the identity of his person;

b. make arrangements, upon the request of a person who has lawful access to the protected subject-matter, in order to enable that person to make use of the subject-matter as permitted by law.

2 Paragraph 1(b) does not apply to full or extensive copies of works available on the market.

3 Any person who breaches the obligations imposed by Article 1 has no entitlement to the protection afforded under Article 39a.

4 The Federal Council can enact further rules regarding the application of technological measures in the field of copyright protection if it is required by the public interest.

Art. 62 para. 1 introduction and 3 (new)
1 Any person whose copyright or related rights are infringed or jeopardized or whose rights in regard to the protection of his technological measures or rights-information management are violated or jeopardized, can demand from the court :
…

3 Any person who is not successful with a request according to Article 39b paragraph 1(b) can petition a court to oblige the user of technological measures to accede to the claim.

Art. 69a (new) Infringement of the protection of technological measures and rights-management information

1 Upon the request of the person harmed with respect to the protection of technological measures or rights-management information, any person shall be subject to imprisonment for up to one year or a fine who intentionally and unlawfully:

a. circumvents technological measures according to Article 39a paragraph 2 with the intention of making unauthorized use of the work or other subject-matter, or to enable its use by someone else;

b. manufactures, imports, offers, sells or otherwise distributes, rents, makes available for use or possesses for commercial purposes devices or products that primarily serve for the circumvention of technological measures according to Article 39a paragraph 2;

c. offers or provides services to circumvent technological measures according to Article 39a paragraph 2;

d. promotes means or services for the circumvention of technological measures according to Article 39a paragraph 2;
…

2 If the offender acts in a professional capacity, then he or she will be prosecuted ex offcio. The punishment shall be imprisonment of up to three years or a fine.
…”

Once more, I owe thanks to my colleague and friend James Thurman for editorial advice.