The judgment in the Logistep case has created a certain amount of uncertainty as to whether copyright infringement can still be prosecuted under current legislation. However, efforts are now underway to introduce measures into legislation to facilitate the enforcement of copyright on the internet and therefore to create clarity in the matter.
The Logistep judgment (cf. our 18th Report on activities 2010/2011, section 1.3.5) has introduced a measure of uncertainty with regard to its impact on the prosecution of copyright infringement on the internet. The public prosecution services have interpreted the judgment to mean that the obtaining of IP addresses from the internet may not, as a general rule, be used for the prosecution of copyright infringement and that the courts will not admit evidence obtained in such a manner. We, on the other hand, believe that even after the judgment, it is still legitimate to obtain and process such personal data, provided that the following points are respected (cf. our 19th Report on activities 2011/2012, section 1.3.7 in German and French):
- The collection and storage of data must not go beyond what is absolutely necessary in order to file criminal charges against alleged copyright infringers.
- Every effort must be undertaken to ensure that negotiations between the rightsholders and the (alleged) copyright infringer regarding the amount of damages being sought should only be initiated at the request of the former or after a decision by the criminal court.
- The rightsholders must indicate as clearly as possible how they collect data and the use to which that data shall be put. They should explain how they proceed in infringement cases by placing information to this effect in an easily-accessible and prominent position on their website (detailing for example the type and scope of the data that they collect). This must be done in a completely transparent manner. Furthermore, they should make it absolutely clear that claims for damages may be sought once an infringer has been convicted by the criminal courts.
The best way to ensure that the collection of such data is admissible under current legislation is for the rightsholder to seek a ruling from a court of last instance setting out the requirements that must be fulfilled in order for evidence on internet copyright infringement to be deemed in conformity with data protection law.
We have repeatedly made reference to the Supreme Court's 2010 annual report in which it draws the attention of the government - a rare occurrence in Switzerland - to the insufficiencies of current legislation to deal with copyright infringement. After a parliamentary vote that tasked the government with the preparation of a draft bill, and especially thanks to our own intervention on the matter, the first steps have now been taken. Acting on instructions from Justice Minister Simonetta Sommaruga, a working group has been asked to produce its recommendations on the adaptation of copyright law to technological developments by the end of 2013. Its mandate also includes the examination of measures to facilitate the enforcement of laws on the internet.