Illegally accessible Films on the Internet: Swisscom does not have to block Domains

Copyright, Access Provider, Blocking, Domains

The Swiss Federal Supreme Court has ruled that Swisscom, as an access provider (provider of Internet access), cannot be obliged to block access to Internet pages containing films made illegally accessible.

On 8 February, the Swiss Federal Supreme Court ruled in its decision 4A_433/2018 that Swisscom, as access provider (provider of Internet access), cannot be obliged to block access to Internet pages containing films made illegally accessible. The Swiss Federal Supreme Court rejects the complaint of a company in Switzerland which is entitled to the copyrights for part of the films concerned.

The company had sued Swisscom in 2015. It demanded that Swisscom, as an access provider, use technical measures to block its customers' access to certain foreign portals via which films made illegally accessible can be played directly (streaming) or downloaded (downloading). In Switzerland, the company owns the copyrights to the corresponding films offered. The Commercial Court of the Canton of Berne dismissed the 2017 lawsuit.

The Swiss Federal Supreme Court rejects the company's appeal. In order for Swisscom to be obliged to block the Internet pages in question, it would have to make a legally relevant contribution to them as a participant in a third-party copyright infringement. This is not the case. First of all, there is no copyright infringement on the part of the users who consume the films via access to the worldwide Internet provided by Swisscom. The Copyright Act permits this use of published works for personal use, irrespective of whether the source has been made legally or illegally accessible. In the revision of copyright law, the legislator refused to prohibit the reproduction of works from illegal sources for personal use. It is not denied that the operators of the Internet portals in question and the hosters who make the films available on the Internet infringe copyright. However, Swisscom cannot be accused of making any concrete contribution to these copyright infringements. Swisscom's activities are limited to offering access to the worldwide Internet. The films are not released for viewing by Swisscom itself, but by third parties at unknown locations abroad. These third parties are neither Swisscom customers nor are they otherwise related to Swisscom. The fact that Swisscom, together with numerous other access providers, provides the technical infrastructure for access to the Internet is not sufficient for responsibility as a participant in the copyright infringements in question. Otherwise, all Swiss access providers would be held responsible for all content made available on the Internet in violation of copyright law. A regulation for the integration of access providers to combat copyright infringements on the Internet using appropriate procedures and technical blocking measures would have to be adopted by the legislator.

Read the press release of the Swiss Federal Supreme Court dated February 27, 2019, here.

March 2019 | Authors: Dr. Andreas Glarner, Nadine Küng

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