The new regulation according to the revised Swiss Copyright Act
The Swiss Copyright Act ("URG") was revised in a process lasting several years and came into force in its new form on 1 April 2020. Various changes were introduced in various areas. One of the amendments aims to better combat piracy on the internet and is aimed at hosting providers. The URG was extended by a new article 39d with the rather cumbersome title "Obligation of operators of internet hosting services to store information entered by users". According to this article, hosting providers who create a particular risk of copyright infringement are now obliged to ensure that once removed, copyright infringing content remains removed (so-called stay-down principle).
Does this regulation make sense?
Piracy harms authors and the copyright system and must be stopped. A good starting point is to take action e.g. with hosting providers and with the stay-down principle a sustainable protection of copyrights can probably be achieved.
Was it necessary?
According to the view taken here, such an obligation on the part of the hosting providers could have already taken effect with reference to the existing copyright law. Under the heading of participation in copyright infringements, access providers were relieved of responsibility by the Federal Supreme Court; with reference to the same considerations, hosting providers could have been included in the responsibility. The stay-down principle is a concrete application of the right to injunctive relief in the event of a threatened infringement. Negative claims against participants are in principle possible according to the Federal Supreme Court. The new standard would therefore not have been necessary.
However, the legislator's search for specific provisions concerning providers has obviously provided the desired clarity, which was not possible due to the lack of a sufficiently rapid development of case law. The regulation should therefore be helpful in practice.
Civil law character only
However, since the provision only offers legal protection under civil law (Art. 62 para. 1bis URG), it remains doubtful whether the desired effect of more effective anti-piracy measures will actually occur, since ultimately a civil plaintiff is always required who wants to see the provision implemented.