20. November 2012

The Federal Court overturned the conviction of a dealer of pirate decoders

Early October 2012, the Court of Justice of the European Union has decided that a system of exclusive licences is contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.

The Swiss Federal Supreme Court has recently decided a case with a similar background, but based on Swiss copyright law. A merchant was found guilty for manufacturing and marketing equipment used to decode encrypted services by Canal+. The sentence was also based on a violation of the copyright owner‘s right to transmit broadcasts to the public. Approximately 450 clients have benefited from his system.

The Swiss Federal Supreme Court cancelled the verdict. It held that the merchant did not violate the federal law on copyright regarding transmission and re-transmission of broadcasts. Namely, it held that the manufacture and sale of the „Dreambox“ device did not constitute an act of retransmission under this legislation.

The Swiss Federal Supreme Court also mentioned that the merchant had not been convicted of a violation of Article 69a of the Swiss Copyright Act, which sanctions the violation of the protection of technological measures or information relating to digital rights management. This provision punishes criminal behavior of those who propose to the public a device that is primarily designed, produced, adapted or performed in order to enable or facilitate the circumvention of protective technological measures. Such measures also may include encryption which includes
coding for access control in subscription television. However, the merchant had been convicted for acts he commited before the entering into force of this provision on 1 July 2008.

(Federal Supreme Court ruling of October 11, 2012, in re 6B_584)