Important: ISOC-CH comments on AGUR12 Final Report

Please find the statement about the ISOC-CH position on, and an analysis of, the AGUR12 final report (AGUR12 is a working group studying possible changes to Swiss copyright law). The report was issued on 6 December 2013. Additionally, there are links to AGUR12 information, as well as further analysis for our readers after the paper.

By ISOC-CH members, Michel Chevallier and Richard Hill
December 2013

Abstract
AGUR12, a working group studying possible changes to Swiss copyright law has issued its final report, calling for a series of measures, including to strengthen enforcement of copyright laws in the digital world.  Many of the proposed measures are not consistent with the fundamental goals of an open Internet, would be problematic to implement, and are not necessary.

Therefore, the Swiss Chapter of the Internet Society (ISOC-CH) is of the view that recommendations 9.3.2, 9.3.3, 9.3.4, 9.3.5, 9.3.6 and 9.3.7 of the AGUR12 report should not be further pursued.

Background
The Internet Society Switzerland Chapter (ISOC-CH) is a non-governmental not-for-profit association; it is a recognized Chapter of the global Internet Society (ISOC).  The goals of ISOC are to promote policies that ensure that a healthy, sustainable Internet is available to everyone, and in particular to champion public policies that enable open access.

Over the past years, the question of how to reconcile intellectual property rights and the increasing use of the Internet has attracted increasing attention.  This has also been the case in Switzerland.

For ISOC, policy and technology discussions regarding the relationship between the Internet and intellectual property should continue to address the multiple challenges imposed by the nature and architecture of the Internet.  In particular, policies regarding intellectual property should not be excessively influenced by traditional concepts of intellectual property which appear increasingly antiquated and inapplicable in a space where information is democratized, people become increasingly more empowered to create, exchange and distribute content and innovation and creativity proliferate.  Among other consequences, these developments make it less clear-cut to know who holds rights on what and any hurried response might generate larger problems that those the regulation wanted to address in the first place.

Infringement of intellectual property rights is a critical issue that needs to be addressed, but, at the same time, it must be addressed in ways that do not undermine the global architecture of the Internet or curtail internationally recognized rights.  There shall be no delegation of responsibility to private parties without legal supervision and orders and no a priori criminalization of individual behavior.

The best answer to the risk on IP infringement on the Internet is the existence of a number of varied legal sources for content downloading.  This aspect, that is the encouragement of the development of such an online marketplace, is partially covered by AUGR recommendation 9.5.2.

In summary, the AGUR proposal is another piece in the debate to decide whether exiting laws (on privacy, data protection, intellectual propery, etc.) cover the virtual world or whether specific regulations are needed.  ISOC Switzerland thinks that the current regulations suffice and that any new rules, specifically aimed at the Internet, would only be discriminatory and introduce an overregulation on Internet compared to the physical world.

Proposals to change Swiss copyright law
The Swiss copyright working group (AGUR12), appointed by Federal Councillor Simonetta Sommaruga in August 2012, has published its final report.  This report includes proposals for a package of measures to revise the current copyright laws, including in particular:

• The issuing of alerts to users of P2P networks that seriously infringe on copyright, and civil and /or criminal prosecution in the case of repeated offenses;
• The obligation of hosting providers operating from Switzerland to remove, upon notification, content that infringes on copyright (there was no agreement within the AGUR12 concerning measures for preventing the re-uploading of such content and the checking of relevant lists of links);
• The obligation of access providers operating from Switzerland, either upon notification or upon an order issued by the Cybercrime Coordination Unit (or a corresponding new authority similar to it), to block access, in grave cases, to sources that are obviously illegal;
• To regulate the protection of the provider as well as his relevant obligations, e.g. protection against direct claims by right holders or actions for liability.

In certain cases, other measures are called for, such as blocking domain names and/or IP addresses and suspending a user’s access to the Internet.

ISOC position on copyright and the Internet
The Internet Society (ISOC) has published several papers regarding intellectual property rights.  In the “Issues Paper on Intellectual Property on the Internet“, ISOC expressed the view that enforcement measures which appear to undermine the role of the courts and systematically seek to exercise extralegal pressure are not desirable; in particular, proposals to disconnect users from Internet access if they violate intellectual property rights are considered alarming (p. 7-8).  Judicial and regulatory oversight, and due process, must be maintained (p. 8).  Law making and policy design need to adapt to a new paradigm –one that respects and takes into account technology, network standards and architecture yet, at the same time, remains technology neutral (p. 9).  Techniques which require the disruption of DNS infrastructure, whether by filtering results or through domain name seizures, have been seen as having serious deficiencies; these techniques do not solve the problem, interfere with cross-border data flows and services, and undermine the Internet as a single, unified, global communications network (p. 10).

In its post “The Trans-Pacific Partnership Agreement (TPP) and the IPR Internet-related provisions“, ISOC expressed the view that intermediaries (such as Internet Service Providers – ISPs) should not be required to be proactive in removing or filtering content, rather they should not check content.  ISOC has been consistent in suggesting that intermediaries should not be held liable for the traffic that runs through their channels; they should not become the ‘police’ of the Internet.

Further background information is found in the paper “Perspectives on policy responses to online copyright infringement: an evolving policy landscape“.

ISOC-CH position regarding the AGUR12 proposals
The Swiss Chapter of the Internet Society (ISOC-CH) has analyzed the AGUR12 report in light of the principles and considerations set forth in the cited ISOC documents and is of the view that, of the measures of section 9.3 of the AGUR12 report, only 9.3.8 should be considered, for the following reasons:

9.3.2    The provision turns intermediaries into enforcement agencies, and obliges them to decide whether a request for takedown is valid; this is not a proper role for intermediaries, it should be left for the courts.  Intermediaries should not be required to take down content unless ordered to do so by a court.  The current legal provisions are adequate and no changes to the law are required.

9.3.3    The actions called for in this provision can only be ordered by courts.  The current legal provisions are adequate and no changes to the law are required.  Further, it is not clear how this could be implemented without resorting to measures that might well lead to excessive and undesirable blocking.

9.3.4    DNS and IP blocking are extreme measures that should generally be avoided and, in any case, can never be implemented without a court order.  The current legal provisions are adequate and no changes to the law are required.  Further, such measures have been seen to be ineffective in practice, because it is always possible to work around the blocking.

9.3.5    Current legal provisions regarding data processing (storage and privacy protection) are adequate for what concerns copyright issues.  No additional data processing requirements should be established in order to facilitate copyright enforcement.  The current legal provisions are adequate and no changes to the law are required.  Indeed, the proposed measures would appear to be contrary to the basic principles of data protection.

9.3.6    No special notification system is required.  Rights owners are free to notify end-users and to request that intermediaries also do so.  If such notifications are not considered sufficient, rights owners can request court orders.  The current legal provisions are adequate and no changes to the law are required.

9.3.7    The current legal provisions regarding disclosure of identity of alleged infringes are adequate and no changes to the law are required.

9.3.8    Indeed Swiss law should be revised to clarify the exemptions of providers from liability.

That is, the recommendations 9.3.2, 9.3.3, 9.3.4, 9.3.5, 9.3.6 and 9.3.7 of the AGUR12 report should not be further pursued.

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Additional information for readers

The AGUR12 report is in French here  and the report is in German here.

Recommendations from the report are here in English

For more information about the Internet Society’s positions on these topics, please see the following links

1. Intellectual Property and the Internet Society
2. Perspectives on Emerging Policy Responses to Online Copyright Infringement: An Evolving Policy Landscape – English
3. Internet Society perspectives on Domain Name System (DNS) Filtering – English
4. DNS blocking or filtering by ISPs to protect interests of copyright holders – English

ISOC-CH general concerns related to the report of the AGUR12 working group include:

1. Any solution that “interferes” with the basic communication infrastructure is harmful to a free, open Internet
2. At the heart of the Internet Society, we put forth that government policies can sustain an open and universally accessible platform for innovation, creativity, and economic opportunity.
3. Blocking (e.g. IP/DNS), banning users from access to the Internet, jeopardising privacy, and similar actions are disproportional for infringements [but are a different story with major crimes, handling for such the Swiss legal system is mandated already.]

Should these proposals be implemented, there exists a high potential for misuse and violations of privacy; too much harm is caused to the Internet for a questionable benefit of the entertainment industry; the society as whole would potentially to suffer from such new laws. As stated by Chairman of ISOC-CH, Bernie Höneisen, “The task of the basic communication infrastructure should consist only of reliable, non-discriminatory, and cost-effective transportation of data. It must not be misused to enforce particular interests, as such interventions inevitably lead to collatoral damage, i.e. non-involved users suffer…” The membership of AGUR12 was “unbalanced” as the Internet Society (as many other Internet related organizations) was not invited to attend AGUR12 and express its views there.

ISOC-CH member Brian Trammell, researcher at the Communications Systems Group, ETH Zürich, working on Internet-scale network measurement and network security, wrote on his blog in this post the following synopsis and review of why we should be concerned about AGUR12 and the possible next steps of the Swiss Government:

“The working group was convened ensure equitability and efficiency in collective copyright management schemes, but discussed wider issues around the intersection of new media technology and Urheberrecht (author’s rights) as well… The working group lacked any representation from organizations with significant Internet expertise, and this is reflected in their recommendations that are listed here in English concerning the Internet, which range the gamut from incredibly dangerous to merely completely infeasible.

Recommendation 9.3.5. “Data Processing” is the most patently difficult and threatens an open, free internet, as it would allow “[r]ights holders” (read: movie studios, record labels, other dying media industries, and the collective organizations that represent them) to “process internet connection data (in particular, dynamic and static IP addresses) for the purposes of investigating copyright infringement…” By “connection data” they presumably mean at minimum a set of records describing which customers contact which servers. This requires in-band passive monitoring… [This] does not seem to be compatible with the most basic principles of privacy protection…

Less dangerous but still impractical is Recommendation 9.3.4, which would require operators to “block access to web portals that feature obvious illegal sources by means of IP and DNS blocking”. DNS blocking would break DNSSEC and is therefore impossible if you want DNS integrity…IP blocking drastically increases the costs of network operations and network security, and, in a world where “illegal content” moves around dynamically, ineffective.

At least the Working Group seems to recognize there is a problem here with the next sentence: “…blocking measures…may not compromise the technical functionality of the IP or DNS system,” This is a plain contradiction that nullifies the rest of the recommendation. The working group also attempts to address the inherent cost externalization problem with “rights owners must adequately compensate access providers for the costs incurred for blocking access,” which, given the costs involved, practically nullifies the recommendation again.

Were these two recommendations put into law, they would represent a significant competitive disadvantage for the Swiss Internet industry as a whole, and the entire ecosystem of communications innovation built around it, as the “rights holder” organizations effectively externalized the costs of propping its business model up onto the network operations community.”

You can find also a recent news article (in German) on this topic here, where ISOC-CH already expressed concerns in an earlier news article (Computerworld) and here on the ISOC-CH News page.