The Swiss federalist system requires that new laws or major law revisions pass through a democratic process in which not only the parliament but all important stakeholders are involved, such as cantons, parties, associations and interest groups. This request for opinions, arguments and alternatives on a broad scale makes the law changing processes quite slow. This is also true for copyright law.
In 2014 the Federal Council decided that the Swiss Copyright Act needed a major revision and mandated the Federal Office for Intellectual Property to prepare a draft bill for public consultation by the end of 2015. The main reason for this decision was the necessity to adapt Swiss copyright law to the internet era, in particular to allow a more rigorous fight against internet piracy and to better cope with various technological developments.
Switzerland signed the Marrakesh Treaty on 28 June 2013. The necessary adjustments of the existing copyright exception with regard to the new international legal framework were included, as a relatively small piece, in this larger law revision. Doing so meant that the ratification of the Marrakesh Treaty had to adapt its timing to the more comprehensive law revision process. The consultation procedure opened on December 2015 and continued until the end of March 2016. Almost 1250 comments with a volume of approximately 8000 pages were submitted. There was only little opposition to the proposed changes to the copyright exception, but opinions regarding many parts of the strategic approach of the whole draft bill diverged greatly.
Thereupon, a new “compromise draft” was created that tried to take into account the 8000 pages of partially conflicting interests of the involved parties. In November of last year the Federal Council approved this legislative draft and the dispatch for submission to parliament. According to the responsible federal office the law revision will not be completed before the end of 2019.
Unfortunately, the draft has one important misleading term: the definition of the beneficiary. In the French version the draft talks about “utilisation d’œuvres par des personnes atteintes de déficiences sensorielles” which means “people with sensorial handicaps”. In the Italian and in the determining German version of the draft the formulation is more ambiguous, which allows – with some fantasy – to interpret the “sensorial perception” in a broader way, such as a difficulty to reach or capture the content of a printed book. It is important to underline that this unfortunate formulation is not an expression of a political or juridical intention. The explanatory report on the draft bill is quite clear about the recipients. In this report the definition of beneficiaries (in all languages) is even broader than the one in the Marrakesh treaty. This broader understanding of beneficiary was also confirmed by the Federal Institute for Intellectual Property.
As for all other aspects, the draft covers pretty much the requirements of the Marrakesh Treaty. Like in the actual law, right holders and publishers will have the right to compensation: Swiss trusted intermediaries will still have to pay a moderate fee to the national collecting society for each distribution copy. However, this fee is only due within Switzerland, and has no influence on international exchange.
All countries around Switzerland are part of the European Union and will therefore meet the Marrakesh requirements by September of this year, while Switzerland will have to wait at least one more year. For Swiss trusted entities and their patrons this delay will not have significant negative consequences on their daily work and life: Due to a current agreement between the collecting societies of the neighboring countries, exchange of German, French and Italian accessible books has been ongoing practice for several years.
By Dr. Flavia Kippele
Director
Swiss Library For the Blind