AIPPI Study Question Q299 – Online infringement and territoriality considerations

YES. Article 109(2) of the Federal Act on Private International Law (PILA) of 18 December 1987; CC 291; ‹https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en›) determining the place of jurisdiction in case of intellectual property right infringements and Art. 110 PILA determining the applicable law are also applicable for online copyright infringements.

According to Art. 109(2) PILA, actions pertaining to the violation of intellectual property rights may be brought before the Swiss courts at the defendant’s domicile or, in the absence of a domicile, at the defendant’s habitual residence, i.e., the place where the defendant lives for a certain period of time, even if this period is of limited duration from the outset. Moreover, jurisdiction lies with the Swiss courts at the place of the infringing act or the place where its effects occurred and, in proceedings concerning the operation of an establishment in Switzerland, at the place of that establishment.

Article 110 PILA holds the principle of lex loci protectionis: intellectual property rights are governed by the law of the country for which protection is claimed. With respect to claims arising out of the infringement of copyrights, the parties may agree, at any time after the event causing damage, to apply the law of the forum (Art. 110(2) PILA).

An important provision (Art. 39d of the Federal Act on Copyright and Related Rights (CopA) of 9 October 1992, Copyright Act; CC 231.1; ‹https://www.fedlex.admin.ch/eli/cc/1993/1798_1798_1798/en›) was introduced in the Copyright Act Revision 2020. Article 39d CopA requires hosting providers to prevent the re-upload of infringing content once they have been notified of a prior infringement on their platform. This obligation applies only if the service creates a specific risk of repeated infringements, due to its design or business model. Providers must take reasonable and proportionate technical and economic measures but are not subject to a general monitoring duty.

In addition, the Swiss Federal Supreme Court (FSC) held in its decision BGE 145 III 72 – «Netzsperren» (https://tinyurl.com/BGE-145-III-72) that internet access providers cannot be held liable for copyright infringements committed by users via foreign websites based |on Art. 50(1) of the Federal Act on the Amendment of the Swiss Civil Code (CO) of 30 March 1911, Part Five: The Code of Obligations; CC 220; ‹https://www.fedlex.admin.ch/eli/cc/27/317_321_377/en›). The FSC found that access providers do not provide a sufficiently causal contribution to the infringement and lack specific knowledge (or duty to know) of concrete illegal acts. General awareness that infringements may occur via the internet is not enough to establish liability, and any obligation to block access would require a clear statutory basis.

Swiss legislation has no specific geo-blocking provisions relating to online copyright infringement. However, the FSC has ruled in relation to a trademark infringement on the internet that the possibility of geo-blocking must be taken into account when determining the commercial effect of such infringement, which is required to establish a sufficient connection to Switzerland (BGE 146 III 225, cons. 3.3.3 – «Merck»; ‹https://tinyurl.com/BGE-146-III-225›).

Competent court/conflict-of-jurisdiction rules

The aim of this section is to identify the relevant criteria for determining the competent court in cases of online copyright infringement, as well as the territorial scope covered by the court’s jurisdiction.

a. □ Claimant’s Domicile, i.e. Domicile of the author/copyright holder (usually also the Place of Prejudice)

Please explain

NO. The jurisdiction of the Swiss court in the place where the copyright infringement occurred (cf. Art. 109(2) PILA, Art. 5(3) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, concluded on 30 October 2007 [Lugano Convention; LugC; CC 0.275.12]) extends only to places where the copyright is infringed, and not to places where the copyright owner suffers the prejudice (BSK IPRG-Jegher/Kunz, 4th edn., Basel 2021, Art. 109 N 69; BSK LugÜ-Hofmann/Kunz, 3rd edn., Basel 2024, Art. 5 N 572 et seq.).

If the claimant’s Domicile is a relevant connecting factor for determining jurisdiction, please indicate the territorial scope of the competence of your national court:

□ All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.

□ Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.

□ Other (please specify)

Please explain

N/A

b. □ Defendant’s Domicile, i.e. Domicile(s) of the copyright infringer(s)

Please explain

YES, the domicile of the defendant is the general place of jurisdiction (cf. Art. 109[2] PILA, Art. 2[1] LugC).

If YES, please specify:

• □
  Domicile of the Website Operator, i.e. the principal/direct/main infringer YES.
• □
  Domicile of the Website Hosting Provider YES.
• □
  Domicile of the Domain Name Hosting Provider UNLIKELY.
• □
  Other (please specify)

Please explain

Swiss courts base their jurisdiction solely on the fact that the defendant is domiciled in Switzerland. Accordingly, Swiss courts would have jurisdiction over claims of copyright infringement not only against the principal infringer but also against participating persons, i.e. persons who incite or assist in a copyright infringement, provided that they are domiciled in Switzerland.

However, the FSC has ruled that parties involved in a copyright infringement can only be held liable if their involvement is generally capable of facilitating the principal infringer’s act. Participation that merely has a «somewhat» facilitating effect but is not sufficiently closely connected to the act itself is not sufficient (BGE 145 III 72, cons. 2.3.1 – «Netzsperren»). Accordingly, the liability of an internet access provider that has no contractual relationship with the uploader of the infringing content, the website operator, or the website hosting provider was denied (BGE 145 III 72, cons. 2.3.2 – «Netzsperren»). In an obiter dictum, the Court noted that the website operator and the website hosting provider could be held liable (BGE 145 III 72, cons. 2.2.3 – «Netzsperren»).

If the defendant’s Domicile is a relevant connecting factor for determining jurisdiction, please indicate the territorial scope of the competence of your national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions. YES.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

The territorial scope of the competence of Swiss court at the defendant’s domicile is unrestricted and also in|cludes acts of infringement, damages and prejudices occurring in foreign jurisdictions (BGE 129 III 295 cons. 2.1 – «Pulverlack»; BSK IPRG-Jegher/Kunz, op. cit., Art. 109 N 57).

• □
  Nationality of the claimant, i.e. Nationality of the author/copyright holder
• □
  Nationality of the defendant, i.e. Nationality of the copyright infringer(s)

Please specify:

• □
  Nationality of the Website Operator, i.e. the principal/direct/main infringer
• □
  Nationality of the Website Hosting Provider
• □
  Nationality of the Domain Name Hosting Provider
• □
  Other (please specify)
• □
  Country of First Publication of the copyrighted work
• □
  Other (please specify)

Please explain

Nationality-related connecting factors are not applicable in determining the jurisdiction of Swiss courts to hear online international copyright infringement.

If Nationality-related connecting factors are applicable, please indicate the territorial scope of the competence of the court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

N/A

a.□ Place of Infringement

Please specify:

• □
  Place where the infringing content is uploaded on the Operator Website (Country A/place of the principal act of copyright infringement) YES.
• □
  Place where the Website/infringing contents are hosted/stored (Country B) YES.
• □
  Place where the Domain Name is hosted (Country C) UNLIKELY.
• □
  Other (please specify)

Please explain

The jurisdiction of Swiss courts extends to the place where the tort occurred, i.e., the place where the copyright infringement was committed. This also includes partial acts, but not mere preparatory acts (BGE 125 III 346, cons. 4caa; BSK IPRG-Jegher/Kunz, op. cit., Art. 109 N 67; BSK LugÜ-Hofmann/Kunz, op. cit., Art. 5 N 562 et seq.). As described above (cf. Question 2), not only the principal infringer but also parties involved in the copyright infringement, such as website operators or hosting providers, may be held liable. Accordingly, the acts of these parties may also constitute a place of infringement that results in the jurisdiction of Swiss courts. However, these parties are only subject to jurisdiction at the place where they themselves have acted (BSK LugÜ-Hofmann/Kunz, op. cit., Art. 5 N 540, 604a).

If Place of the Infringement is applicable, please indicate the territorial scope of the competence of your national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions. YES.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

The territorial scope of the competence of Swiss courts at the place of infringement is unrestricted and also includes acts of infringement, damages and prejudices occurring in foreign jurisdictions BSK IPRG-Jegher/Kunz, op. cit., Art. 109 N 68; BSK LugÜ-Hofmann/Kunz, op. cit., Art. 5 N 608 et seq.)

b. □ Place of Damage YES

Please explain

If YES, how would your national courts determine the Place of Damage

• □
  Accessibility (i.e. whether the public in your country can access the website or app) YES.
• □
  Targeting (i.e. whether the website or app is directed or targeted at the public in your country or region) (NO).
• □
  Other (please specify):

If Targeting factor is applicable, how would your national courts determine whether the relevant public is targeted?

• □
  Whether the copyrighted work is Accessible online in your country
• □
  Whether the server of the website or app with the copyrighted work is located in your country
• □
  Whether the website or app with the copyrighted work uses a local language of your country
• |□
  Whether the website or app with the copyrighted work allows to pay in the local currency of your country
• □
  Whether there is any business facility of the user of the copyrighted work in your country
• □
  Whether there are any promotional activities Targeting public in your country or region by the user of copyrighted work
• □
  Other (please specify)

If Place of the Damage is applicable, please indicate the territorial scope of the competence of your national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

c. □ Place of Prejudice, i.e. usually Domicile of the author/copyright holder. NO

Please explain

If Place of the Prejudice is applicable, please indicate the territorial scope of the competence of your national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that your national court is competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of your national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

N/A

Applicable law/conflicts-of-laws rules

When answering the following question, please assume that your national courts have jurisdiction.

Please answer YES or NO – YES

Please explain if needed –

YES. Under Swiss private international law and more specifically according to Art. 110(1) PILA, IP rights are governed by the law of the State for which protection of the intellectual property is sought («lex loci protectionis»; see also above, answer to Question 1).

If YES, i.e. the Berne Convention applies to determine the applicable law, please answer to question 6.

If NO, i.e. the Berne Convention does not apply, and other rules of private international law are applicable, please answer to question 7.

• □
  Law of the Forum
• □
  Law of the Place of Infringement (please specify)
• □
  Place where the infringing content is uploaded on the Operator Website (Country A/place of the principal act of copyright infringement)
• □
  Place where the Website/infringing contents are hosted/stored (Country B)
• □
  Place where the Domain Name is hosted (Country C)
• □
  Other (please specify)
• □
  Law of the Place of the Damage
• □
  Law of the country Targeted by the website
• □
  Law of the country where the website is Accessible
• □
  Other (please specify)
• □
  Law of the Place of the Prejudice
• □
  Law of the Country of First Publication of the work
• □
  Law of the country of the author’s Nationality or Domicile
• □
  Law of the country of the defendant’s Nationality or Domicile
• □
  Other (please specify)

Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works (CC 0.231.15; ‹https://www.fedlex.admin.ch/eli/cc/1993/2659_2659_2659/de›) is interpreted as leaving room for national law to determine the applicable law. Under Art. 110(1) PILA, this is expressed through the country of protection principle. In Swiss doctrine and case law, this principle is understood to mean that the claimant identifies the applicable law by indicating under which national copyright law an infringement is alleged. The applicable law is therefore not determined by a factual criterion such as the «place of infringement» or the «place of damage», but by the claimant’s legal claim: Rather than through a traditional choice-of-law rule, the decisive element is the territorial scope of the specific national copyright law invoked. The lex loci protectionis follows from the national law under which protection is claimed and within whose territorial scope the alleged infringement occurred. Swiss law thus allows the claimant to choose the law on which the action is based and thereby to determine the lex causae. That law then governs the existence, content, scope, and alleged infringement of the asserted intellectual property right (BGE 136 III 232, cons. 5 – «M6 III»).

According to Art. 110(2) PILA, with respect to claims arising out of copyright infringement, the parties may agree, at any time after the event causing damage, to apply the law of the forum. This limited choice of law |is also in accordance with Art. 5(2) of the Berne Convention.

• □
  Law of the Forum
• □
  Law of the Place of Infringement (please specify)
• □
  Place where the infringing content is uploaded on the Operator Website (Country A/place of the principal act of copyright infringement)
• □
  Place where the Website/infringing contents are hosted/stored (Country B)
• □
  Place where the Domain Name is hosted (Country C)
• □
  Other (please specify)
• □
  Law of the Place of the Damage (please specify)
• □
  Law of the country Targeted by the website
• □
  Law of the country where the website is Accessible
• □
  Other (please specify)
• □
  Law of the Place of the Prejudice
• □
  Law of the claimant’s Domicile
• □
  Law of the defendant’s Domicile
• □
  Law of the Website Operator’s Domicile
• □
  Law of the Website Hosting Provider’s Domicile
• □
  Law of the Domain Name Hosting Provider’s Domicile
• □
  Other (please specify)
• □
  Law of the claimant’s Nationality
• □
  Law of the defendant’s Nationality
• □
  Law of the Country of First Publication of the copyrighted work
• □
  Law of the place where protection is sought
• □
  Other (please specify)

Please explain

There is no specific provision governing the determination of applicable law in cases of online copyright infringement. Nor is there established court practice that departs from the general framework of private international law. Accordingly, the applicable law is determined on the basis of the country of protection principle pursuant to Art. 110 PILA. In practice, however, this approach gives rise to considerable difficulties.

This is particularly evident in cases where mere availability of content is sufficient to establish copyright infringement under many national laws, thereby potentially triggering protection in every country in which the content can be accessed. Such an outcome lacks predictability for the parties and is not suitable for efficient enforcement.

For this reason, the strict application of the country of protection principle has been criticised in doctrine, and it has been suggested that connecting factors should be structured so as to identify a single, most relevant legal system (see below, Q 20).

Another approach would be to limit the territorial scope of national copyright protection by requiring that an online copyright infringement be recognised only where the relevant country of protection is specifically targeted. Such a criterion could be considered at the international level, in particular in the context of a future interpretation or revision of the Berne Convention (see below, Q 21).

Geoblocking

Please answer YES or NO – YES

Please explain

Geo-blocking measures may restrict the access to a website for Swiss customers. A geo-blocked website would not be deemed to be accessible and/or directed at the Swiss market (for patent law, see Swiss Federal Patent Court, decision O2019_007, E. 25, ‹https://www.bundespatentgericht.ch/fileadmin/entscheide/O2019_007-Urteil_2021-11-19.pdf›; for trademark law, see BGE 146 III 225, cons. 3.3 – «Merck»)

Please answer YES or NO – YES

Please explain

The Swiss Federal Supreme Court held that the fact that geo-blocking measures may be bypassed with technical cunning «rafinesse» is of no relevance to the territoriality of IP rights (Swiss Federal Supreme Court, decision 4A_265/2020, cons. 5.3 – «Luminarte/Lumimart»).

Please answer YES or NO

NO (see below, answers to Questions 23–25)

Please explain

Please answer YES or NO – NO

If YES, please explain.

In cross-border situations there is no general need to amend the current law or practice relating to the determination of competent courts in online copyright infringement. From the perspective of Swiss right holders, jurisdiction at the place of damage (Art. 5(3) LugC, Art. 109(2) PILA) allows them to bring claims before Swiss courts even where the copyright infringement was committed abroad.

However, it may be questioned whether the mere accessibility of a website in Switzerland, an approach reflected in the case law of the Court of Justice of the European Union (see, e.g., C-441/13, Hejduk), is sufficient to establish jurisdiction or whether a sufficient connection to Switzerland should be required, in particular that the website is directed at the Swiss public. At the same time, relying on the mere accessibility of a website in Switzerland allows the question of jurisdiction to be determined on the basis of simple and predictable criteria. Since a sufficient connection to the court of jurisdiction is a matter of substantial law as well (e.g. when it comes to substantiating damages claims), the procedural law situation seems acceptable.

Please answer YES or NO – NO

If YES, please explain.

According to Art. 110(1) PILA, «Intellectual Property rights are governed by the law of the state for which protection of intellectual property is sought». According to the prevailing doctrine and case law of the FSC (BGE 136 III 232 – «Merck»), this provision is understood as a reference to the substantive law of the country for which protection is claimed, as invoked by the claimant. In other words, the applicable law depends on the claimant’s choice, rather than being determined on the basis of objective criteria.

On the other hand, denying the claimant the choice of the applicable law could lead to unwelcome results by making it (even) more difficult to act against infringers in an international context. As such, the current situation seems acceptable.

Please explain.

To the best of our knowledge, the matter of whether the availability of VPN measures calls into question the appropriateness of geo-blocking as means of preserving territoriality has not been taken up by Swiss courts. However, including potential circumvention (that needs to be actively implemented by the circumventer) in the consideration of whether a measure is appropriate or not might stretch the definition too far.

To the best of our knowledge, the proportionality of geo-blocking measures has not been disputed so far in the context of copyright infringements. This may be due to the fact that proportionality considerations are usually made in public law rather than civil law, and that geo-blocking measures are usually ordered to be implemented by the infringer rather than imposed by an authority.

In summary, geo-blocking measures seem justified in view of the fact that a territorial connection to the country of protection is required for a claim to be materially successful. Geo-blocking measures should only be rejected if they prove to be overwhelming in a specific situation, which is generally unlikely to occur.

Please answer YES or NO – NO

If YES, please explain.

Please consult with relevant in-house/industry members of your Group in responding to Part III.

YES. Industry actors, both rights-holders and service providers complain of a lack of predictability when it comes to anticipating competent laws and courts. These concerns are to some extent mitigated by what appears to be a broad international consensus that mere online access from any given jurisdiction should not in itself (i.e. with no additional factors) give rise to local competence.

Harmonization on the sole question of geo-blocking does not appear necessary at this stage, given the scarcity of decisions and what may become a global consensus on the topic.

|If YES, please respond to the following questions without regard to your Group’s current law or practice.

Even if NO, please address the following questions insofar as your Group considers your Group’s current law or practice could be improved.

The aim of this section is to determine the criteria that should be relevant to determine the competent court in the case of online copyright infringement.

a. □ Claimant’s Domicile, i.e. Domicile of the author/copyright holder (usually also Place of Prejudice) NO.

Please explain

General admittance of this criteria (purely claimant domicile) would be a significant departure from current private international law mechanisms. It would risk triggering a «race to the forum»/«forum shopping» reflex, which is not desirable.

If the claimant’s Domicile should be a relevant connecting factor for determining jurisdiction, please indicate the territorial scope of the competence of the national court:

□ All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.

□ Only acts of infringement, damages and prejudices occurring within the territory of a competent national court, according to the principle of territoriality.

□ Other (please specify)

Please explain

N/A

b. □ Defendant’s Domicile, i.e. Domicile of the copyright infringer.

YES.

Please explain

The competence of courts at the defendant’s (here copyright infringer’s) domicile is the most widely held practice under Swiss private international law and is aligned on an international level as well.

If YES, please specify:

• □
  Domicile of the Website Operator, i.e. the principal/direct/main infringer – YES
• □
  Domicile of the Website Hosting Provider – YES
• □
  Domicile of the Domain Name Hosting Provider – UNLIKELY. Causation is extremely thin (in contrast to questions say of trademark infringement)
• □
  Other (please specify) – NO for internet access providers and other telecoms providers

See above

Please explain

If the defendant’s Domicile should be a relevant connecting factor for determining jurisdiction, please indicate the territorial scope of the competence of the national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions. YES
• □
  Only acts of infringement, damages and prejudices occurring within the territory of the competent national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

See above. E contrario, there is a substantial risk of negative conflicts of competence, whereby claimants would not be able to adequately seek legal protection and remedies

c. □ Other

Please explain

Please specify:

• □
  Nationality of the Website Operator, i.e. the principal/direct/main infringer
• □
  Nationality of the Website Hosting Provider
• □
  Nationality of the Domain Name Hosting Provider
• □
  Other (please specify)
• □
  Country of First Publication of the copyrighted work
• □
  Other (please specify)

Please explain

This would lead to a unique departure from Swiss private international law and procedural tradition. It would also likely constitute an unconstitutional practice as nationality-driven choices can be discriminatory. Lastly, its practical impact would be questionable in jurisdictions (such as Switzerland) with a significant percentage of non-national (or instead dual citizens) residents.

If Nationality-related connecting factors should be applicable, please indicate the territorial scope of the competence of the court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also|acts of infringement, damages and prejudices occurring in foreign jurisdictions.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of the competent national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

N/A

a. □ Place of Infringement YES.

Please specify:

• □
  Place where the infringing content is uploaded on the Operator Website (Country A/place of the principal/direct/main act of copyright infringement) YES.
• □
  Place where the Website/infringing contents are hosted/stored (Country B) YES.
• □
  Place where the Domain Name is hosted (Country C) NO.
• □
  Other (please specify)

Please explain

Infringer upload of infringing content as well as hosting of such content remain in a close causation nexus and, therefore, both should qualify as place of infringement.

On the other hand, hosting of a domain name is far removed from an infringement act; this is absent other aggravating factors, such as the domain name hosting provider having actual knowledge of infringement.

If Place of the Infringement should be applicable, please indicate the territorial scope of the competence of the national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions. YES.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of the competent national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

See above Q 18.

b. □ Place of Damage

YES.

Please explain

If YES, how should national courts determine the Place of Damage

• □
  Accessibility (i.e. whether the public in a specific country can access the website or app) YES.
• □
  Targeting (i.e. whether the website or app is directed or targeted at the public in a specific country or region) NO.
• □
  Other (please specify): NO.

If Targeting factor is applicable, how should national courts determine whether the public is targeted? N/A

• □
  Whether the copyrighted work is Accessible online in a country
• □
  Whether the server of the website or app with the copyrighted work is located in a country
• □
  Whether the website or app with the copyrighted work uses a local language of a country
• □
  Whether the website or app with the copyrighted work allows to pay in the local currency of a country
• □
  Whether there is any business facility of the user of the copyrighted work in a country
• □
  Whether there are any promotional activities Targeting public in a country or region by the user of copyrighted work
• □
  Other (please specify)

If Place of the Damage should be applicable, please indicate the territorial scope of the competence of the national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions. NO.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of the competent national court, according to the principle of territoriality. YES.
• □
  Other (please specify)

Please explain

A place of the damage based on accessibility, as we advocate, admits the competence of courts in numerous jurisdictions given the online environment. Admittedly, accessibility is a rather thin nexus to the damaging event, hence a strict territoriality should apply.

c. □ Place of Prejudice, i.e. usually Domicile of the author/copyright holder. NO.

Please explain

If Place of the Prejudice should be applicable, please indicate the territorial scope of the competence of the national court:

• □
  All acts of infringement, damages and prejudices occurring worldwide/regionally (in the process of copyright infringement). It means that a national court should be competent for acts occurring in its jurisdiction, but also acts of infringement, damages and prejudices occurring in foreign jurisdictions.
• □
  Only acts of infringement, damages and prejudices occurring within the territory of the competent national court, according to the principle of territoriality.
• □
  Other (please specify)

Please explain

|d. □ Other

Please explain

1.Applicable law/conflicts-of-laws rules

This section has two different and independent aims.

• o
  The first is to determine, in general, the relevant and desirable criteria to determine the applicable law (question 20).
• o
  The second is to propose a harmonised interpretation of Article 5(2) of the Berne Convention (question 21).

When answering the following question, please assume that a national court is competent.

• □
  Law of the Forum
• □
  Law of the country of the Place of Infringement (please specify)
• □
  Place where the infringing content is uploaded on the Operator Website (Country A/place of the principal act of copyright infringement)
• □
  Place where the Website/infringing contents are hosted/stored (Country B)
• □
  Place where the Domain Name is hosted (Country C)
• □
  Other (please specify)
• □
  Law of the country of the Place of the Damage (please specify)
• □
  Law of the country where the website is Accessible
• □
  Law of the country Targeted by the website

If YES, how should national courts determine whether the public is targeted?

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  Whether the copyrighted work is Accessible online in a country
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  Whether the server of the website or app with the copyrighted work is located in a country
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  Whether the website or app with the copyrighted work uses a local language of a country
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  Whether the website or app with the copyrighted work allows to pay in the local currency of a country
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  Whether there is any business facility of the user of the copyrighted work in a country
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  Whether there are any promotional activities Targeting public in a country or region by the user of copyrighted work
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  Other (please specify)
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  Other (please specify)
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  Law of the country of the Place of the Prejudice
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  Law of the country of the claimant’s Domicile
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  Law of the country of the defendant’s Domicile
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  Law of the country of the Website Operator’s Domicile
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  Law of the country of the Website Hosting Provider’s Domicile
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  Law of the country of the Domain Name Hosting Provider’s Domicile
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  Law of the country of the claimant’s Nationality
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  Law of the country of the defendant’s Nationality
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  Law of the Country of First Publication of the copyrighted work
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  Law of the country of the place where protection is sought
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  Other (please specify):

The following approach has been proposed in doctrine (L. Schüpbach, Das Schutzlandprinzip im Urheberkollisionsrecht, Diss. Basel 2018). It aligns with comparable proposals developed by research initiatives, in particular the CLIP Principles of the Max Planck Institute for Innovation and Competition (Principles on Conflict of Laws in Intellectual Property) and the ALI Principles of the American Law Institute (Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments), and is therefore noted here.

First step: limitation of relevant jurisdictions

First, the number of potentially applicable legal systems should be reduced.

In this context, targeting should be taken into account, not as an autonomous connecting factor, but as a filtering criterion. The only national copyright laws that should be considered are those where the allegedly infringing activity is targeted to the respective territory.

Mere accessibility of content should not be sufficient, as it would lead to a worldwide multiplication of applicable laws and undermine legal certainty.

Where the number of targeted jurisdictions remains limited (for example: up to four jurisdictions), the application of the respective national laws remains feasible and consistent with the territorial nature of copyright. In such cases, the determination of applicable law may rely solely on this first step, without further consolidation.

Second step: determination of the applicable law

Where the infringing act is directed to more than four jurisdictions, the purely territorial approach leads to excessive fragmentation. The cumulative application of multiple laws becomes impractical and undermines legal certainty: The applicable law should be determined on the basis of objective connecting factors reflecting the closest connection to the infringement.

In particular, the following criteria should be considered:

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  Place of the infringing act, in particular the place where the content is uploaded or otherwise made available (place of input), as the primary connecting factor;
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  Domicile or place of business of the infringer or commercial exploiter, reflecting the economic centre of the activity;
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  Domicile of the copyright holder, as an indication of the place where the economic effects are primarily felt;
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  Existing legal relationships between the parties, where applicable.

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  Law of the Forum
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  Law of the country of the Place of Infringement (please specify)
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  Law of the country where the infringing content is uploaded on the Operator Website (Country A/place of the principal act of copyright infringement)
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  Law of the country where the Website/infringing contents are hosted/stored (Country B)
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  Law of the country where the Domain Name is hosted (Country C)
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  Other (please specify)
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  Law of the country of the Place of the Damage
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  Law of the country where the website is Accessible
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  Law of the country Targeted by the website

If YES, how should national courts determine whether the public is targeted?

• □
  Whether the copyrighted work is Accessible online in a country
• □
  Whether the server of the website or app with the copyrighted work is located in a country
• □
  Whether the website or app with the copyrighted work uses a local language of a country
• □
  Whether the website or app with the copyrighted work allows to pay in the local currency of a country
• □
  Whether there is any business facility of the user of the copyrighted work in a country
• □
  Whether there are any promotional activities Targeting public in a country or region by the user of copyrighted work
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  Other (please specify)
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  Other (please specify)
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  Law of the country of the Place of the Prejudice
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  Law of the Country of First Publication of the copyrighted work
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  Law of the country of the author’s Nationality or Domicile
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  Law of the country of the defendant’s Nationality or Domicile
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  Other (please specify)

Please explain

The expression «the law of the place where protection is sought» in Art. 5(2) Berne Convention should be interpreted as:

• •
  a reference to the law applied by the forum, including its conflict-of-law rules;
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  not as an autonomous or mandatory conflict-of-law rule; and
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  not as imposing a strict lex loci protectionis or lex fori approach.

Accordingly, the determination of applicable law remains a matter for the Bern Convention member countries’ private international law, which may, but need not, adopt the country of protection principle.

Please answer YES or NO. – NO

Please explain.

A revision of Art. 5(2) of the Berne Convention is, in principle, not necessary. The provision, as it stands, leaves ample room for national laws to determine the applicable law and accommodates the country of protection principle, which remains a coherent and widely accepted foundation of copyright conflict of laws.

However, in the context of online copyright infringement, a strict application of this principle may lead to the simultaneous application of a multitude of national laws, given the ubiquity and cross-border accessibility of online content. This risks creating significant legal uncertainty and inefficiencies in enforcement.

Against this background, it may be appropriate to clarify, at the level of the Berne Convention, a minimum requirement of territorial connection. In particular, mere accessibility of content in a given country should not, in itself, be sufficient to establish copyright infringement. Rather, it should be required that the allegedly infringing activity is specifically targeted at the public in that country.

Such a clarification would preserve the country of protection principle while limiting its excessive fragmentation in the digital environment. It would also allow for the development of more refined criteria for assessing targeting in the member states.

If YES, please propose the drafting of a provision that could be adopted during a revision of the Berne Convention, and that would establish a harmonised rule on conflicts of jurisdiction on one hand, AND conflicts of laws on the other hand.

Geoblocking

Please answer

YES.

Please explain

Geo-blocking could be considered as an appropriate and proportionate technical mechanism for enforcing copyright territoriality.

Please answer

YES.

Please explain

Legal sufficiency should not demand absolute technical perfection due to the realities of modern network obfuscation.

Please answer

YES.

Please explain

In practice, a layered approach combining proportionate technical verifications and non-technical deterrents is recommended.

Non-technical measures, such as explicit jurisdictional declarations in the Terms of Service and the removal of local targeting indicators (e.g., Swiss Francs or Swiss-specific advertising), should be recognized as lack of targeting intent.

Swiss practice should avoid mandating advanced physical tracking, such as HTML5 Geolocation APIs. Querying a user’s GPS hardware collects highly sensitive physical movement data. Mandating such surveillance for civil copyright enforcement fundamentally conflicts with the data minimization and «privacy by design» principles strictly enforced under the revised Swiss Federal Act on Data Protection (FADP). Protecting copyright terms does not legally justify disproportionate, privacy-invasive tracking of Swiss citizens.

Other

N/A

N/A