Under Swiss Copyright Reform, Private Sharing And Downloads From Unauthorized Sources Would Still Be Legal

from the truly-remarkable dept

Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.

"Staydown":

Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Filed Under: copyright, copyright reform, downloading, intermediary liability, isps, legality, special 301, switzerland

How To Solve The Piracy Problem: Give Everyone A Basic Income For Doing Nothing

from the welcome-to-the-Star-Trek-economy dept

Here on Techdirt we often discuss economics in the absence of scarcity -- how the ability to make any number of digital copies for vanishingly small cost creates new business opportunities for creators. But could a kind of abundance exist in the physical world too? That's the question raised in a fascinating post on Salon about a vote that will take place in Switzerland:

By gathering over 100,000 signatures -- which they delivered last Friday along with 8 million 5-cent coins representing the country's population -- activists have secured a vote by Switzerland's parliament on an audacious proposal: providing a basic monthly income of about $2,800 U.S. dollars to each adult in the country.

As the article explains, that $2,800 is unconditional:

If you're rich you get it, if you're poor you get. If you're a good person you get it, if you're a bad person you get it. And it does not depend on you doing anything other than making whatever effort is involved to collect the money.

The rest of the post is a great discussion with John Schmitt, a senior economist at the Center for Economic and Policy Research, who explores this idea from various angles. The whole thing is well-worth reading, but I think one section in particular will be of interest to Techdirt readers:

So if we were a very rich world, which I think we are to a certain degree, [universal basic income of the kind being discussed in Switzerland] would be a remarkable way to make sure that people could maximize their ability to express themselves but also maximize their ability to participate in the communities that they live in in a full way. Stay home and take care of kids if that's what you want to do. Take care of your parents when they're old and sick.

This feeds into discussions about how creators could live and thrive in a world where it was legal to share copies of their work. A society that provided them -- and everyone -- with a basic wage would not need to rehearse today's sterile arguments about piracy. Artists would have the option of living on the basic wage while they created, or of making more money by building on the fact that their work is freely available, as Techdirt has advocated. Some might dismiss this as a utopian dream, but as Schmitt points out, it's not:

People sometimes refer to this as a kind of "Star Trek" economy -- you just said, "Replicator, make me a ham sandwich." There wasn't any social conflict around production and consumption. And that, I think, is that kind of ideal in which this kind of a thing could play out. We are probably there in terms of the economics. We are very, very wealthy -- we could afford to do this. But we are not there in terms of the politics.

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Filed Under: abundance, basic income, economics, switzerland

Is The US Using Prism To Engage In Commercial Espionage Against Germany And Others?

from the well,-that-would-be-different dept

As we noted last week, one of the key claims following the revelations about the Prism program was that it was aimed at those outside the US, and that US citizens were caught up in it only incidentally. A further leak concerned the Boundless Informant analysis tool, one of whose maps showed which regions of the world were subject to most surveillance. Along with obvious hotspots like Iran and Pakistan, Germany too was among those of particular interest, as was the US (whoops.) A story on reason.com offers a clue as to why that might be.

The blog post focuses on an incident from the time when the whistleblower Edward Snowden worked for the CIA, rather than the NSA. Here's the original text in the Guardian:

By 2007, the CIA stationed him with diplomatic cover in Geneva, Switzerland. His responsibility for maintaining computer network security meant he had clearance to access a wide array of classified documents.

That access, along with the almost three years he spent around CIA officers, led him to begin seriously questioning the rightness of what he saw.

He described as formative an incident in which he claimed CIA operatives were attempting to recruit a Swiss banker to obtain secret banking information. Snowden said they achieved this by purposely getting the banker drunk and encouraging him to drive home in his car. When the banker was arrested for drunk driving, the undercover agent seeking to befriend him offered to help, and a bond was formed that led to successful recruitment.

In that quotation, there's the nugget of information that the CIA was not targeting terrorists on this occasion, at least not directly, but "attempting to recruit a Swiss banker to obtain secret banking information". That raises an interesting possibility for the heightened interest in Germany, as revealed by Boundless Informant.

Given that the NSA is gathering information on a large scale -- even though we don't know exactly how large -- it's inevitable that some of that data will include sensitive information about business activities in foreign countries. That could be very handy for US companies seeking to gain a competitive advantage, and it's not hard to imagine the NSA passing it on in a suitably discreet way.

Germany is known as the industrial and economic powerhouse of Europe, so it would make sense to keep a particularly close eye on what people are doing there -- especially if those people happen to work in companies that compete with US firms. In other words, just as as the CIA was looking to obtain "secret banking information" in Switzerland, it seems quite likely that the NSA also comes into the possession of similarly sensitive commercial data during its German trawls.

If that were confirmed, it would certainly change the debate somewhat. The standard justification that massive surveillance is indispensable in the fight against terrorism if lives are to be saved, would be replaced by the rather weaker one that it's rather handy being able to spy on Germany since its industrial secrets can be pilfered. It will be interesting to see whether any future revelations about the NSA's activities shed more light on this area.

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Filed Under: commercial espionage, economic espionage, europe, germany, international relations, nsa, prism, surveillance, switzerland

WIPO Scared Of The Pirate Party; Won't Give It Observer Status Due To Objections Despite Meeting Criteria

from the but-of-course dept

There was a report a few weeks back noting that WIPO had been in favor (pdf) of allowing the Pirate Party International to be designated as an accredited "observer" to WIPO meetings (which would allow them to participate as an non-governmental organization, but without voting powers). However, it appears that the official decision on this has now been delayed because of objections from Swiss, French and US (who else?) officials:

This morning, under agenda item 6, the WIPO General Assemblies decided to defer a decision until 2013 on the application for accreditation by Pirate Parties International. I was told that the US, Switzerland the France raised objections in the informal consultations, and that some other European countries wanted to raise objections, but found it awkward given the recent success of domestic Pirate Parties in national elections. The USA said it asked for a hold on the decision until WIPO could decide if it wanted to accept political parties as WIPO observers. One delegate said European countries were concerned that the Pirate Parties would take "political action" back home when they disagreed with positions taken by the official delegates at the WIPO meetings.

While it is a legitimate question as to whether or not political parties should count as NGOs, the whole thing still feels pretty questionable. As Jamie Love notes, it just makes WIPO look like it's afraid of the Pirate Party.

KEI's view is that the decision to block the Pirate Parties International application made WIPO look even more captured by right holders than it actually is. To the extent that intellectual property rights issues become seen as political rather than simply technical matters, it may be possible to have broader, deeper and more useful debates on the purpose and performance of the intellectual property rights system. Why? Because many of the technical staff at the government levels are caught up in a system where responsiveness to right-holder interests is key to promotions or job retention, and the robust revolving door with industry creates incentives to be anti-consumer.

In other words, another blown opportunity to try to move things forward, rather than staring longingly at the past.

Meanwhile, others are pointing out that the Pirate Parties International appears to meet all the criteria, and thus it is completely ridiculous to delay their observer status:

“If the NGO’s application falls within a plain wording of the rules and regulations defining what NGOs may be accredited, then the application should be granted,” he said. “From our perspective, what harm can there be for the secretariat of a political party to be an observer at WIPO? If anything, it seems to us this will lead to a better understanding by that secretariat of the international dimension of IP public policy, which is no bad thing.”

The whole thing seems like a typical negative reaction to the party simply because of its name, without any recognition of what it actually stands for, driven by pressure from the US. WIPO looking like a US stooge yet again? Not a huge surprise.

Filed Under: delays, france, ngos, observers, pirates party international, switzerland, us, wipo

Apple Accused Of 'Violating The Rights' Of Iconic Swiss Railway Clock

from the live-by-the-sword... dept

Apple is notoriously aggressive when it comes to going after others for supposedly violating its trademarks -- often taking it to extreme levels. So it seems noteworthy, as many of you sent in, that the Swiss Railway Service (SBB) is claiming that Apple's clock app in iOS 6 happens to infringe on a clock design they hold the rights to. On the left is Apple's app. On the right, is SBB's iconic version. While the article above quoted someone from SBB saying that he's "happy" that Apple used the design, that doesn't mean that they're okay with it. They're not:

SBB is the sole owner of the trademark and copyright of the railway clock. The railway company will now get in touch with Apple. The aim is a legal, as well as a financial solution. It is not right that one [Apple] simply copies the design.

Apple has a bit of a history of playing fast and loose with the artwork it uses. Remember the story of the iPad background image? And there are plenty of reasons to suggest that Apple should be able to do this. But, considering how aggressive it is in enforcing its own trademarks, you'd think that it would be a lot more careful before doing things like this. Of course, you have to also wonder... if Apple weren't so aggressive with its own trademarks, would SBB be so insistent on a "legal" and "financial" solution?

Filed Under: clocks, switzerland, trademark
Companies: apple, sbb, swiss railway service

Switzerland Questions Crazy Hollywood Claims About File Sharing... Ends Up On Congressional Watchlist

from the funny-how-that-works dept

Last December, we wrote about a report put out by the Swiss executive branch noting that, based on their research, it appeared that unauthorized file sharing was not a big deal, showing that consumers were still spending just as much on entertainment, and that much of it was going directly to artists, rather than to middlemen. In other words, it was a market shift, not a big law enforcement problem. At the time, we wondered if Switzerland had just bought itself a place on the USTR's "Special 301 list" that the administration uses each year to shame countries that Hollywood doesn't like.

That list doesn't come out for a bit, but there's another, similar list, put out by the Congressional International Anti-Piracy Caucus (yeah) that has added Switzerland to its "bad countries" list along with China, Russia and Ukraine. Italy also joined Switzerland as a "first-timer" on the list -- despite rulings that required ISPs to block access to various file sharing sites. The issue in Italy? I'd guess that a story we had earlier this year has something to do with it. After some political fighting, the government there basically decided to just stop regulating copyright issues online. There's also an upcoming fight about new copyright proposals coming in Italy, and this seems like a preemptive strike for some of Hollywood's favorite Congressional Reps and Senators to pressure Italy into approving bad laws that Hollywood likes.

Meanwhile, both Spain and Canada -- who passed legislation very much at the behest of American interests -- were removed from the evil part of the list and switched to "in transition." The message is not particularly subtle: do not, at any cost, question Hollywood's planned copyright laws, or the US government will shame you as a haven for pirates, no matter how bogus that claim really is. Hopefully governments in Switzerland and Italy resist such obvious lobbying on behalf of special interests and pay attention to reality in those markets.

Filed Under: congress, congressional anti-piracy caucus, copyright, italy, switzerland, watchlist

Ubuntu's Mark Shuttleworth Predicts That Countries Who Limit Patents Will Have More Innovation

from the but-of-course dept

The BBC has an interesting article about Mark Shuttleworth and Ubuntu, and some of the innovations Canonical is working on. There's some good stuff in there, but what caught my attention was the bit at the end about patents:

"We know that we are sort of dancing naked through a minefield and there are much bigger institutions driving tanks through," Mr Shuttleworth says.

"It's basically impossible to ship any kind of working software without potentially trampling on some patent somewhere in the world, and it's completely impossible to do anything to prevent that.

"The patents system is being used to slow down a lot of healthy competition and that's a real problem. I think that the countries that have essentially figured that out and put hard limits on what you can patent will in fact do better."

Of course, this is the exact opposite of what the patent system is supposed to do -- but pretty much everyone who's actually innovating these days seems to recognize the same thing. What amazes me is that we haven't seen more of what Mark hints at towards the very end: countries providing explicit safe havens around patents. We have examples of this in the past -- perhaps most famously, the Netherlands and Switzerland in the latter half of the 19th century. The Netherlands dumped patents entirely, while the Swiss limited what was patentable massively (to the point that very little was considered patentable at all). And both countries saw economic growth as a result -- where industry and innovation flocked to both countries because they weren't being held back by patent disputes.

It does seem that perhaps some folks in the Netherlands remember this. There's an ongoing effort called the Appsterdam Foundation (in Amsterdam, of course), where part of the goal is to help protect app makers from crazy patent lawsuits. But I'm waiting for even more recognition from countries that this is a real growth opportunity. Assuming that countries have the nerves to withstand having the US taunt them each year with placement on the Special 301 list, there's a real opportunity for a developed nation to have innovation show up in droves by massively limiting patents.

Filed Under: appsterdam, mark shuttleworth, netherlands, special 301 list, switzerland
Companies: canonical, ubuntu

Now It's Switzerland's Turn To Call ACTA Into Question

from the and-another-one dept

When discussing ACTA, there's a natural tendency to concentrate on the bigger players -- the US or the EU -- but it's important to remember that there are many other countries involved. One of those is Switzerland, which has just joined the doubters' club by holding off from signing ACTA. Here's why (French original):

Since the conclusion of the negotiations, the criticisms regarding ACTA have multiplied in various countries. The [Swiss] Federal Council takes these fears seriously since they concern fundamental liberties and important points of law.

As a result, Switzerland will not be signing ACTA for the moment. Instead:

The Council will re-examine the question when new elements on which it can base its decision are available. These elements could include the deliberations of the five EU countries that have delayed signing ACTA, the results of the referral to the European Court of Justice by the European Commission, or the continuation of the EU's ratification procedure.

Clearly, the Swiss Federation is taking a wait-and-see attitude, and doesn't want to rush into ACTA when others are taking their time. In itself, this latest move by Switzerland doesn't change much, but it does add to the growing doubts about whether ACTA will ever come into force.

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Filed Under: acta, european court of justice, european union, swiss federation, switzerland

Swiss Government Says File Sharing Isn't A Big Deal; Artist Are Fine, Industry Should Adapt

from the welcome-to-section-301 dept

Well this is interesting. Switzerland, which has been a party to the ACTA negotiations, but last we checked had not signed on yet, has put out a report from its executive branch, basically completely downplaying the issue of file sharing. The report notes, accurately, that consumers are still spending just as much on entertainment, and lots of it are going to artists. The only real problem seems to be a for a few big foreign gatekeepers who are getting cut out of the new revenue streams... and as far as the Swiss government is concerned, those companies should just learn to adapt. It specifically says that concerns about file sharing having a "negative impact on the Swiss cultural creativity are unfounded."

The report also rejects ideas like a three strikes plan or any sort of internet filtering. Three strikes is rejected for interfering with free speech rights, while filtering goes against privacy rules and might also degrade overall internet performance. Perhaps most interesting, the report rejects an idea for compulsory licensing -- something that has been gaining some support, but is a really bad idea. The Swiss report notes that existing media levies are incredibly unpopular with voters who know that the money isn't really going to artists, and separately they fear that it would get in the way of "international treaty obligations." I wonder if ACTA is a part of what they mean there.

Either way, you have to wonder if this stance means that Switzerland just bought itself a place on the US government's ridiculous Special 301 Report, which is basically the US government putting countries on a "naughty list," for infringement if enough rightsholders complain.

Filed Under: adapting, file sharing, innovation, switzerland

EU, Mexico & Switzerland Will Not Sign ACTA This Weekend, Despite The 'Signing Ceremony'

from the a-brief-reprieve dept

With Japan announcing a signing ceremony this Saturday for those who negotiated ACTA, it seemed reasonable to think that most of those listed as planning to attend would be signing. Of course, we wondered about the US, the EU and Mexico -- as there have been legal questions and challenges raised to ACTA in all three cases, with Mexico's Congress specifically telling the President it will not ratify the treaty. The EU had also been investigating whether or not ACTA was in line with EU law, and that process has not been completed, so we thought it was premature for the EU to sign onto ACTA.

Thankfully, the EU Commission agrees... and has now said that it will not be signing ACTA this weekend, and also saying that Mexico and Switzerland have also said they won't sign... yet:

"The EU has not yet completed its internal procedures authorising the signature, therefore it will not be signing ACTA at this event," the Commission spokesperson said in a statement. "Neither will Mexico and Switzerland, since they did not conclude their domestic proceedings."

"For the EU, the domestic process for signature is that the Council [of Ministers] adopts a decision authorising a EU representative to sign ACTA. Since this required the translation of the treaty in all the EU languages, such decision has not yet been adopted. It may still require a couple of months for the EU to be able to sign ACTA. After the signature, the European Parliament will have to vote its consent of ACTA,"

Of course, this is not a complete rejection of ACTA, but it is a reprieve. It also sounds as though all the other countries listed will be signing, including the US, Australia, Canada, New Zealand, Korea, Morocco and Singapore. That's a pretty bold move by the Obama administration, considering the evidence that signing ACTA in this manner without Senate approval is unconstitutional. I guess actually expecting the president to follow the Constitution is only important when you're not in office. Once you get there, all bets are off...

Filed Under: acta, copyright, eu, mexico, switzerland, us