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7.2 A shifting legal basis
When it comes to copyright, there is no specific Swiss legislation on social media (Reusser S., L’admissibilité des hyperliens en droit d’auteur [Admissibility of Hyperlinks in Copyright Law], Helbing Lichtenhahn, Basel, Faculté de droit de l’Université de Neuchâtel, 2014, p. 41). The specific issues arising when works are published or shared on social media are therefore matters for Swiss copyright law and Swiss law governing related rights.
A turbulent past
The Swiss copyright law came into force on 9 October 1992 at the end of a long and drawn-out process. The aim, even then, was to adapt original legislation from 1922 to reflect economic and technological developments (AGUR12 final report of 28 November 2013 , p. 34). The digital revolution did not stop there, however, and the arrival and subsequent development of the Internet, as well as the large number of international texts published, drastically changed the game in terms of copyright issues. This is why copyright law was partially amended in 2008 to take into consideration, to a certain extent, the emergence of Web 2.0, which enabled Internet users to become active participants in the development of online content (AGUR12 final report of 28 November 2013, p. 35).
An equally turbulent future
According to the Federal Council, “the different forms of social media are constantly expanding”. Faced with these new developments, both in terms of numbers (59% of Internet users now use social media) and the forms of social media, the Federal Council regularly draws up an analysis of the situation to evaluate the legal bases regarding social media (Federal Council, Un cadre juridique pour les médias sociaux, Nouvel état des lieux [A Legal Basis for Social Media. A Chance to Take Stock], Supplementary Report of the Federal Council in Fulfilment of the Amherd Postulate 11.3912 “Cadre juridique pour les médias sociaux” [Legal Basis for Social Media] of 10 May 2017, p. 6).
Information technology and communication are constantly evolving, which has a significant impact when it comes to copyright. In fact, the technological revolution has created new uses and commercial opportunities which may end up violating copyright principles. For example, the way social media sites work encourages users to post content which may be protected in order to increase their visibility (Curtis B., Copyright vs. social media: who will win? 20 intellectual property law bulletin, Spring 2016). Following several interventions by the Swiss parliament and two reports on the situation regarding copyright, the Federal Council devised a project to revise the law in 2015.
When this project was submitted for consultation, it was met with several extremely different opinions and thus had to be rewritten. On 22 November 2017, the Federal Council issued a press release regarding changes to copyright law to help combat piracy and also take advantage of digital opportunities (Media release of the Federal Council of 22 November 2017, Federal Council adapts copyright law to the digital age).