By Marc P Holmes
Just as Germany makes copying for personal use illegal, Heise have reported that the Swiss Parliament has passed new federal legislation dealing with the sharing of ‘copyright and related intellectual property rights’ over the internet. The effect of this legislation is that, providing files shared are for ‘personal use’, the act of making a copy by downloading will not be illegal. In addition, the Act stresses that ‘access and copy-protection measures must not be circumvented’, which suggests that only files uploaded and shared by the author would conform to this definition.
It would seem that over seven years since the explosion of Napster and others, during which time ‘filesharing’ and ‘downloading’ have become popular euphemisms for the mass breach of copyright, legislators still insist on buying into two fallacies: Firstly, that they can actively encourage a watertight, author-endorsed sharing of works without the risk of all sorts of other files being shared via the same platform without the author’s consent, and secondly that by legislating a national policy on filesharing, this somehow excludes (or simply does not take into account) all content being downloaded by fellow countrymen originating from a myriad of different international locations. Perhaps unfortunately from their point of view, the internet was not christened ‘the intranet’ on its inception – limiting all content to within national borders – thus, it seems fairly futile to now try and declare a certain web-based practice illegal or legal in one country alone. In almost a decade since the first server-client filesharing programmes came into use, music as a readily downloadable medium is continuing to make a mockery of the vast majority of copyright legislation, as well the entertainment industry’s official stance on filesharing activity. Making downloading legal for ‘personal use’, a policy that French courts also appear to be sympathetic to (albeit there within a clearer potential collective license framework), still looks like a clumsy extension of the English ‘fair use’ principal. After all, unless you are DJing on a nightly basis to hundreds of people, or holding downloaded album listening parties for everyone in your apartment block, what else is listening to music for other than for ‘personal use’?