Policies/en/DMCA-Policy

This is a draft version. Source: adapted from the Wikimedia Foundation Governance Wiki, https://foundation.wikimedia.org/wiki/Policy:Wikimedia_Foundation_Digital_Millennium_Copyright_Act_(%22DMCA%22)_Policy (CC BY-SA 4.0), with changes. Status: first draft, under review. See the detailed disclaimer.

This page is a first draft of an adaptation to Swiss law. It must be reviewed and improved. It claims no legal validity and is not legal advice.

Copyright takedown policy (draft adaptation to Swiss law)

Legal context

The source policy implements the United States Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 512), which gives hosting providers a "safe harbor", a legal exemption from copyright infringement liability, if they remove allegedly infringing content upon receiving a valid takedown notice.

The Ynternet.org Foundation, which intends to host the WikiDeal platform, is a Swiss foundation based in Geneva. It would therefore operate primarily under Swiss law, in particular the Federal Act on Copyright and Related Rights of 9 October 1992 (the Swiss Copyright Act, known as LDA in French and URG in German, revised version in force since 1 April 2020).

Swiss law differs from the DMCA on several points. This draft states these differences explicitly instead of pretending equivalence:

• Swiss law contains no general statutory notice-and-takedown procedure and no safe harbor regime comparable to 17 U.S.C. § 512. The liability of hosting providers is assessed under the general rules of Swiss civil and criminal law and under the Swiss Copyright Act.
• Article 39d of the Swiss Copyright Act imposes a "stay down" obligation on hosting providers whose services have created a particular risk of copyright infringement: once a work has been removed, such providers must prevent it from being made available again.
• Swiss law provides no statutory counter-notification mechanism and no fixed ten-business-day restoration rule. The counter-notification process described below would be a voluntary mechanism offered by WikiDeal, not a legal requirement.
• The United States requirement of a declaration "under penalty of perjury" has no direct Swiss equivalent. A written declaration that the notice is accurate and made in good faith would be required instead; knowingly false claims could engage liability under general Swiss law.

To encourage and maintain free expression on the Marketplaces, the Ynternet.org Foundation intends to push back against takedown requests when it believes that the content in question is lawful.

If you are a copyright owner

If you believe that your work is being infringed on the Marketplaces, WikiDeal encourages you to first seek resolution through the WikiDeal community. You could contact the community at info@wikideal.net with an informal request for content removal. Please provide the exact URL of the content and enough information to substantiate your claim of copyright ownership, for example a link to your publication or a scanned page of the work.

Alternatively, you could send a formal takedown notice to the legal contact of the Ynternet.org Foundation at info@wikideal.net. A formal takedown notice would be expected to include:

• your signature or equivalent identification;
• your contact information;
• identification of the work that you believe is being infringed;
• identification of the material that you believe to be infringing, with a description precise enough to locate it on the Marketplaces;
• a statement that you have a good faith belief that the use is not authorized by the copyright owner, its agent, or the law; and
• a written declaration that the information in the notice is accurate and that you are authorized to act on behalf of the copyright owner.

As the Ynternet.org Foundation would be unable to provide you with legal advice, you may wish to consult a lawyer before filing a takedown notice.

Once a takedown notice is received

If the Ynternet.org Foundation receives a takedown notice that meets the expectations above, its legal department would review the merits of the infringement claim. If the claim appears justified, the content would be removed. WikiDeal intends to take reasonable steps to notify the uploader of the content, and to publish the notice on the platform for transparency, with personal data redacted where the Swiss Federal Act on Data Protection requires it. Whether removed notices should also be reported to external transparency databases is an open point (see below).

If you are an uploader of content

If a contribution of yours was removed following a takedown notice and you believe that the contribution did not violate copyright law, you could file a counter-notification. Since Swiss law provides no statutory counter-notification procedure, this process would be voluntary and defined by WikiDeal. A counter-notification would be expected to include:

• your signature or equivalent identification;
• your name and contact information;
• identification of the material and its location before it was removed; and
• a written declaration that you believe in good faith that the material was removed by mistake or misidentification.

If a counter-notification is received, the Ynternet.org Foundation would seek to notify the original requestor and to re-examine the case. Disputes could then be handled through the mechanisms WikiDeal intends to offer, mediation first, then arbitration (see the Justice portal), or before the competent Swiss courts. The fixed deadlines of the DMCA (such as the ten-business-day restoration rule) do not apply under Swiss law; WikiDeal intends to define and publish reasonable deadlines for each step.

Filing a counter-notification could lead to legal proceedings between you and the sender of the takedown notice. As the Ynternet.org Foundation would be unable to provide you with legal advice, you may wish to consult a lawyer before filing a counter-notification.

Repeat infringers

In appropriate circumstances, WikiDeal intends to terminate the accounts of repeat copyright infringers. In addition, under article 39d of the Swiss Copyright Act, a hosting provider whose services have created a particular risk of infringement can be required to prevent the re-upload of works that have already been removed.

Open points for review

This draft must be reviewed by a lawyer qualified in Swiss copyright law. Points explicitly left open:

• the designated postal and legal contact for formal notices (currently info@wikideal.net as a general contact);
• whether removed content notices should be reported to external transparency databases, and which ones;
• the articulation of this policy with the future WikiDeal terms of use;
• the handling of cross-border cases under international treaties such as the Berne Convention;
• the exact deadlines for each step of the takedown and counter-notification process.

Want to learn more?

• Swiss Federal Institute of Intellectual Property
• Swiss Copyright Act (official English translation)
• Copyright law of Switzerland