Law and Information

Earlier this week, I had the opportunity to provide expert testimony before the Legal Affairs Committee of the Swiss Council of States (roughly equivalent to the U.S. Senate) regarding Switzerland’s implementation of the WIPO Internet Treaties and revision of the copyright act, respectively. It doesn’t come as a surprise that the bill is hotly debated among different stakeholders, and the committee members confirmed that they have received many letters and e-mails in the run-up to the hearing.Right after a presentation by Apple’s iTMS Switzerland Managing Director, I testified about alternative business models for the distribution of digital content that don’t (primarily) rely on DRM protection. Of course, I was also talking about the Berkman Center’s Digital Media Exchange Project. After the presentations, the committee members asked a series of excellent questions about technological, economic, and legal aspects of DRM. Since the debates are traditionally confidential, I can’t go into details here. Instead, I would like to point to some of the characteristics of the bill that I find particularly commendable:

• The bill only prohibits the circumvention of effective technological protection measures aimed at protecting copyrighted materials.
• The bill includes a definition of the effectiveness criterion.
• The ban cannot be enforced against individuals who circumvent TPMs in order to make use of the work in a way that is traditionally permitted by the copyright act (e.g. making a private copy).
• In contrast to the EUCD, all the exceptions and limitations also apply to on-demand services.
• Although the bill creates civil and criminal liability, it adheres to the principle of proportionality with regard to sanctions and penalties. In the context of criminal sanctions in the case of circumvention of TPMs, intent (“Absicht”) is required.

On the other hand, several areas of concern remain (see here and here for background information):

• It’s unclear as to what extent the beneficiaries of a copyright exception can make use of it vis-a-vis TPM. An earlier draft created an innovative and powerful enforcement mechanism (see former draft art. 39b and art. 62, translated here), but the revised draft before the parliament now proposes the establishment of an oversight body (“Beobachtungsstelle”) that facilitates discussion between the stakeholders and might have the power, upon authorization by the Swiss Federal Council, to intervene (e.g. by way of recommendations) in the case of DRM misuse if the “public interest” would require it.
• The encryption exception has been mentioned in materials, but not in the bill itself.
• The ban of trafficking in circumvention devices is absolute.
• The bill doesn’t address transparency and interoperability issues – although I agree that the copyright act is not the best place to deal with these issues.

Besides these TPM-related issues, it is noteworthy that downloading files from P2P services remains legal (private copying exception) under the current version of the bill. In this context, one might also want to mention that the bill doesn’t seem to build on the (contested) assumption that DRM and anti-circumvention laws will reduce piracy. Here as in all other areas, it will be interesting to observe – given the lobbying efforts by the copyright industry – how the draft legislation further evolves once it is debated in public by our national law-makers.