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In Switzerland, is it legal to download copyrighted material without permission?

In Switzerland you'll get all kinds of answers to the question "Is it Legal?". The same goes of course for the internet where you will find articles that tell you it's allowed and others that tell you it's not.

So what is the law actually?

Jutschge
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    @Articuno In most countries the download of copyrighted material is classified as piracy AFAIK (also for personal use). – Jutschge Jun 25 '14 at 15:44
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    In most countries *sharing* is classified as piracy. In many European countries mere *downloading* for personal use is not considered piracy. – vartec Jun 26 '14 at 09:50
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    @vartec Source? I would think that simply having a copy of a copyrighted work (and neither sharing nor downloading as such) is what's forbidden. In practice, copyright owners tend to go after people who are sharing and it's difficult to get caught otherwise but it's still illegal. That's certainly the case in one country I know (but this country is notorious for its aggressive anti-piracy laws so I guess it might be the exception). – Relaxed Jun 27 '14 at 22:32
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    @Relaxed: it's a quite common misconception. ACTA, SOPA etc. were meant to change that to be the case, but have been rejected by EU. EU is however attempting to change that under [EU Copyright Directive](http://en.wikipedia.org/wiki/EU_Copyright_Directive). It's not implemented by most member countries yet. – vartec Jun 28 '14 at 21:07
  • @vartec Maybe but I would still need evidence that it's a *misconception*. Things like SOPA (or HADOPI in France) are entirely focused on enforcement, a completely different question, and do not change the status of illegal copies in any way. – Relaxed Jun 28 '14 at 21:34
  • @Relaxed: Swiss Govt ["downloading will stay legal"](https://torrentfreak.com/swiss-govt-downloading-movies-and-music-will-stay-legal-111202/), Police in Poland ["downloading is legal and by downloading you do not infringe any laws"](http://niebezpiecznik.pl/post/policja-sciaganie-filmow-z-internetu-nie-jest-nielegalne-i-nie-grozi-za-to-odpowiedzialnosc-karna/), The Dutch just turned, but until recently ["anyone could legally download music, films and books without incurring a sanction."](http://www.nlo.nl/en/news/555/Now-in-the-Netherlands-too-illegal-downloads) etc. – vartec Jun 29 '14 at 10:08
  • @vartec I am sure there might be a few others but I would be curious to know whether it's actually the case in most countries. In any case, this still does not mean that unauthorized copies are legal. I don't read Polish but the Swiss report hardly addresses the question at all. Similarly, the fact that the EUCJ ruled against the Netherlands shows that the court considers some copies are already illegal under current law, EU-wide. It's because unauthorized copies are illegal to begin with that the court considers making downloading legal to be a problem. – Relaxed Jun 29 '14 at 11:14
  • @Relaxed: EUCJ ruling and EU rules do not apply directly. They have to be first implemented in national law by member state. So in the near future you'd be absolutely correct. As things stand now, it's *not yet* the case. – vartec Jun 29 '14 at 11:59
  • @vartec Not quite, depending on the procedure (infringement and prejudicial questions are more complicated), EUCJ rulings can apply directly and immediately (EU regulations also do but EU directives indeed generally have to be implemented). My point was completely different though, the EUCJ did not make unauthorized copies illegal, it ruled that the Netherlands had to do something about it *because they were already illegal*. – Relaxed Jun 29 '14 at 12:08
  • @Relaxed: they ruled that the Dutch law is in contradiction with EU laws, thus must be changed. Which has happened. In the Netherlands. Other countries, like for example Poland, have not yet implemented that change. People are governed by national laws, not directly by EU laws. And of course Swiss, even though part of EEA, are not part of EU, so they don't care. – vartec Jul 02 '14 at 17:35
  • @vartec It's not the case in the issue at hand but I just wanted to point out that it's much more complicated than that. In fact, a big part of EU law (in particular regulations) is directly applicable and can be invoked in front of national courts. EUCJ rulings also apply directly. – Relaxed Jul 02 '14 at 19:14
  • @vartec The procedure you describe is called an “infringement” procedure but that's not the case here. From the article you found, it seems to be a prejudicial question, helping the Dutch court to interpret a point of EU law. That court can take decisions that will be effective immediately, without the need to change the law. – Relaxed Jul 02 '14 at 19:18
  • Most importantly, from what I can tell, the ruling is about some details of the rules regarding private copying levy. It only makes sense if some copies are illegal in the first place. It does not *make* them illegal, it uses the fact that they already were (in the eyes of the court) to invalidate the levy and introduce a download ban. – Relaxed Jul 02 '14 at 19:24

2 Answers2

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See: The Swiss Federal Institute of Intellectual Property and their 2011 press release. Legal advice is provided by a Swiss Intellectual Property Law firm, Rentsch Partner, in the form of practical examples.

It is legal to download copyrighted material without permission in Switzerland.

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    There are some restrictions - the documents refer to "personal use". – RedGrittyBrick Jun 25 '14 at 19:41
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    Those are restrictions on use, not on downloading. After download, there *are* restrictions on how you can reproduce or perform the material. –  Jun 25 '14 at 19:46
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    @RedGrittyBrick Actually, you *could* be correct. The statute might be written such that the act of downloading copyright material without permission is only allowed if the downloader has the *subjective intent* of using it for personal use, and if later, uses the material for other than personal use, that later use *as well as* the original download become illegal. This would be an awkward construction, but I will look into it nonetheless. –  Jun 25 '14 at 20:04
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I don't know if this is related or partially answers your question, but there is a one-off tax on blank cassettes, CDs, mp3 players, mobile phones etc, which goes to the SUISA (the collecting society for Swiss songwriters, composers and music publishers), which if I understand/recall correctly was considered to be a pragmatic way to accommodate all sides.

For example, Is it lawful to download music from file-sharing sites? says,

Users of file-sharing sites who do not have such consents are acting unlawfully. The prevailing view, however, is that private downloading in Switzerland does not require the author’s consent – even if the music was unlawfully made available. Since there is no legal precedent so far, the question cannot be conclusively decided (in Germany, for example, it is unlawful to download music files that are «clearly» illegal). In practice, the question never arises in this form. If you have relatively recent P2P software, the titles on your hard disk automatically become available online. This is illegal and unless you obtain the necessary licences you may be exposing yourself to prosecution.

Here is a reference about what is taxed, in French.

The end of this article seems to demonstrate that this is causation and not just correlation.

without such a fee, international law would have forced Switzerland to suppress freedom of private copying currently enjoyed by the public

ChrisW
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Benjol
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    While we *prefer* English sources, because most of our readers can read English, and we *ask* for a rough translation of the gist for other languages, you shouldn't be reticent to link to materials in other languages if that's the most definitive source available. – Oddthinking Jun 27 '14 at 15:22
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    See also http://en.wikipedia.org/wiki/Private_copying_levy – ChrisW Jun 27 '14 at 19:10