On 11 December 2015, the Swiss Federal Council issued a draft law for consultation, which would amend the Copyright Act so as to introduce a notice-sending obligation on ISPs and to create a power in the courts to order the disclosure of subscriber details after a third detected infringement.
The draft law would introduce an article 62a to the Copyright Act, empowering the court to order an ISP to disclose subscriber information in the case of a “serious infringement”. Such an infringement occurs when a work or other protected subject-matter has been made available unlawfully before publication or where a large number of such works or subject-matters which are legally available have been made available illegally.
Under a new article 66g, an ISP would have to send an “information message” to its subscriber on notification of a “serious infringement” by means of a peer-to-peer network. The first message may be sent electronically, but a second must be sent on paper. The second may be sent only after 2 months have elapsed since the first. If a third infringement is detected no earlier than 2 months after the second notice, the ISP must communicate details of the previous notices to the right holder and inform it of the possibility of identifying the subscriber. The second and third infringements must take place no later than 12 months after the sending of the first notice. The right holder is responsible for the ISP’s costs.
Right holders, ISPs and national consumer organisations are supposed to work together to produce the texts of the customer notifications. The national Intellectual Property Institute is to set up a coordination service to facilitate this process (Article 66i). The right holder benefits from a specific exemption from data processing restrictions to allow for the detection and reporting to ISPs of “serious” infringements (Article 66j).
According to a press release, the consultation will run until 31 March 2016. Questions evidently arise as to the implicit requirement that a published work must be available before the right holder can protect it against mass infringement; and as to the scope of the ISP’s obligation to communicate information to the right holder about prior infringements: does a particular right holder have to find 3 “serious infringements” of its own works (or even a single work) before it becomes entitled to ask the court for subscriber information?