With respect to the revision of copyright law, Swisscopyright, the association of the five Swiss collecting societies, advocates fair compensation of artists for the use of their works, including on the internet. Swisscopyright is partially satisfied with the draft proposals of the Federal Council. The draft legislation does address the main demands of AGUR12 and provides for measures to combat internet piracy. The proposed measures go in the right direction, but need to be improved and substantiated.
No expansion of current state oversight
With respect to oversight, Swisscopyright completely rejects the Federal Council's proposals: the planned tightening of state oversight over the activities of the collecting societies amounts to an expansion of regulation that is not only excessive and unnecessary, but would also result in additional costs. Swisscopyright is troubled by the extent to which the Federal Council wishes to intervene in the activities of private-sector institutions working effectively and to the satisfaction of their members. The five Swisscopyright organisations are vehemently opposed to these plans.
- First, the supervision (of tariffs) is to be expanded to activities on the free market that are not subject to the legal authorisation requirement. Swisscopyright totally rejects this impermissible interference with economic freedom and artists' and their organisations' constitutional right to property. Artists want to continue to be able to negotiate the prices for their services and licenses freely through their collecting societies.
- Second, the previous judicial control is to be expanded into a so-called equitableness test. This would allow the authority to intervene at will against decisions of private companies. The additional costs would be transferred entirely to the collecting societies, which means that the additional costs would ul-timately be borne by the artists and producers. The measure also constitutes impermissible interference with the organisation and decisions of cooperatives and associations organised under private law.
- Third, the Federal Council goes even further: it also wants the power to change the distribution rules put in place by the directly affected artists. This is yet another unacceptable violation of the constitutional rights of the artists. The one-person, one-vote principle applies in cooperatives and associations. There are no specially protected minorities. Every member can exercise his/her right with regard to distribution issues.
Swisscopyright rejects these measures and requests that the Federal Council present to parliament draft pro-posals omitting these heightened oversight measures.
Study confirms effectiveness of the collecting societies
Just how unnecessary and inappropriate such measures would be is illustrated by a recent study commissioned by the Swiss Federal Institute of Intellectual Property (IGE/IPI), the supervisory body charged with oversight of the collecting societies. The study, published in December 2015, demonstrates that the collecting societies work in an efficient and economical manner. Their administrative costs are comparable to those of the public sector and NPOs. The study thus confirms the conclusion of the working group on copyright law (AGUR12) and demonstrates that the Federal Council’s draft revision of the copyright law should be revised. Enhanced supervision and regulation of Swiss collecting societies is unwarranted and thus inappropriate.
Quicker legal certainty thanks to shorter tariff approval process
Based on a demand by AGUR12, the Federal Council is proposing a shortening of the tariff approval process. Swisscopyright suggests a more efficient solution: as it was the case before 2007, the Federal Supreme Court should again be the sole appeal authority for this process. This would enable direct complaints against rulings by the Federal Arbitration Commission and thus more rapid legal certainty for the tariff partners.
Bring copyright law into the internet age
The Federal Council's draft proposals lack long overdue adjustments of copyright law to meet the requirements of the internet age. In particular, Swisscopyright proposes including the now common cloud-based storage among the exemptions with regard to private uses subject to a compensation requirement. This should also include provision of accessibility to works for internal operational purposes. There are still no protections in place for the weaker contract party with regard to internationally active, powerful online providers, i.e. in the form of a legal right to compensation for film authors and film actors vis-à-vis video-on-demand platforms. This would legalise usage not currently compensated and ensure fair compensation for the rights-holders.
