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Washington Journal of Law, Technology & Arts

Authors

Michael P. Kunz

Abstract

In April 2016, the Office of the United States Trade Representative placed Switzerland on the Watch List of its 2016 Special 301 Report, which contains an annual review of the state of intellectual property rights protection and enforcement in U.S. trading partners around the world. According to the Report, the decision to put Switzerland on the Watch List was premised on U.S. concerns regarding specific difficulties in Switzerland’s system of online copyright protection and enforcement, particularly the “Logistep” ruling issued by the Federal Supreme Court of Switzerland in 2010. Although the Swiss authorities have acknowledged the difficulties mentioned in the Special 301 Report, the fierce criticism raised by the U.S. seems inappropriate, as the Swiss federal legislature decided long ago to remedy the shortcomings in the Swiss Copyright Act and initiated the appropriate legislative procedures in 2012. Due to the nature of Switzerland’s direct democracy, however, the legislative process is still in progress, with the parliament awaiting the results of the public consultation procedure during the course of the year. Despite this clear roadmap, the United States is increasing its pressure on the Swiss government and encourages it to move forward with concrete and effective measures that address copyright piracy in an appropriate and effective manner. Over the same period of time, the most recent legislative proposals in the field of copyright law in the United States have come to an abrupt halt. Unprecedented public outcry against the legislative proposals in 2012 led to the so-called SOPA and PIPA online protests, which resulted in a political deadlock in the field of copyright law and policymaking. In the eyes of several legal scholars, these protests have revealed a lack of democratic legitimacy in the federal legislative process in the United States, as it denies the general public any meaningful form of participation. Focusing on the respective histories of copyright law and policy in the United States and Switzerland, this Article examines how copyright lobbyists and other special interest groups assert their influence in the legislative process, and how their influence can be diminished. Illustrated by the example of copyright legislation, the Article shows that the instruments of direct democracy in Switzerland—which ultimately caused the delays addressed in the Special 301 Report—not only effectively counterbalance the effect of legislative lobbying, but also help to enhance public acceptance of legislative proposals in general. Ultimately, this Article claims that the United States could strengthen the democratic legitimacy of its federal legislative process by implementing a mandatory public consultation procedure based on the model of Switzerland, which might create a first step towards breaking the current standoff in U.S. copyright lawmaking.

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