Switzerland considers AI data ‘theft’ defence

The Swiss media industry is demanding greater IP protection Keystone / Gaetan Bally

Journalists, authors and artists are in uproar about artificial intelligence (AI) harvesting copyrighted content. Switzerland has turned to legislators to find the right balance between fostering technological innovation and protecting intellectual property.

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Parliament is debating a measure that would limit AI companies from scraping media content without first getting permission from copyright holders.

Large language models (LLMs), which form the foundational layer of AI, are trained on vast amounts of online data. Some AI firms have been accused of using pirated material, information locked behind paywalls or other copyright protected content.

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Many creative professionals have called this theft, especially since LLMs can be used to write new text, create images, or generate music. And publishers have noticed that AI search summaries are syphoning clicks away from their sites.

“What AI ​​companies are doing is modern-day piracy. They are stealing our meticulously researched content,” Andrea Masüger, president of the Swiss Media Association, told the Neue Zürcher Zeitung.

AI is proving both a blessing and a curse for the media and other creative industries. It can be harnessed for research, to generate ideas and create novel material. But LLMs are also accused of undermining the business models of content producers.

Innovative disruption

At is currently threatening to repeat past waves of digital disruption, just as music downloading or social media threatened established business models in the past.

Swiss lawmakers have taken note of the protests and are debating the best way to address the issue.

In December of last year, parliamentarian Petra Gössi drafted a motion to make it illegal for LLMs to scrape media content unless companies opt in to sharing their information. This goes further than the European Union’s AI Act, which places the onus on content producers to deny access by opting out.

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Gössi’s motion alarmed scientists, who predicted the death of AI research in Switzerland. Some feared an opt-in law would threaten the future of Switzerland’s recently launched LLM Apertus.

“The motion is framed very badly and betrayed a lack of understanding of the issue,” Imanol Schlag, an AI expert at the federal technology institute ETH Zurich and co-lead of Apertus, told Swissinfo. “It is equivalent to forbidding the use of the internet or banning the import of computers into Switzerland.”

Legal opinion divided

This outcry prompted parliament to delete the opt-in clause in an amended version of the motion, making it more like the EU’s AI Act.

While the original intent of the motion remains intact – to protect the media from AI copyright rip-offs – many lawmakers believe the precise solution should be drawn up by the Swiss Federal Institute of Intellectual Property (IPI).

Legal opinion in Switzerland is currently split on whether AI models can even be said to break copyright laws. For example, a clause in the Copyright Act allows for reproduction of material for scientific research.

Swiss lawyer Vincent Salvade welcomes the intervention of legislators to bring greater clarity. “It would be desirable to revise the Copyright Act to expressly state that the use of pre-existing works to train AI falls under copyright,” he told Swissinfo.

“The problem is that AI generates content that competes with works created by human beings and takes market share from them. However, AI can only generate content because it is trained by works created by human beings.”

Salvade, who is deputy CEO of Suisa, an agency that collects royalties on behalf of Swiss musicians, champions the creation of a licensing system that charges AI firms to scrape data.

AI still evolving

Florent Thouvenin, chair for information and communications law at the University of Zurich, is in favour of an opt-out mechanism to keep Switzerland in line with EU law. This could be accompanied by a statutory license mechanism for collecting royalties from AI firms that still want to use this data.

Thouvenin says it makes sense for IPI experts to draft a more detailed Bill for parliamentary scrutiny. “Most politicians have no in-depth knowledge of copyright law. It is a very technical subject,” he said.

But he warns that any law changes must be flexible enough to accommodate different, and as-yet unknown, future AI use cases as the technology evolves. “Who knows what AI will throw up next?” he said.

The Digital Society, a Swiss non-profit organisation promoting consumer rights in the digital space, warns against rules that are so stringent they “generate a lot of bureaucracy, little revenue, and considerable damage” – in the shape of AI companies turning their backs on Switzerland.

Other countries are also addressing the impact of AI on IP, either via legislation (such as the EU) or more commonly through the law courts – especially in the United States. The fear is that this may create legal arbitrage, with the most draconian countries becoming less favourable locations for global AI firms.

Media industry fights

Some lawyers, such as Vischer law firm partner David Rosenthal, argue that it is incumbent on media firms to adapt their business models to the AI juggernaut. “History shows that defensive strategies aimed at protecting existing privileges are rarely successful against technological progress in the long term,” he wrote in an article on the company’s website.

The Swiss media industry is determined to continue fighting.

In April, media publishers’ associations from Switzerland, Germany, Austria and Luxembourg jointly issued the Zurich Declaration, demanding that AI companies respect transparency, source attribution, remuneration, accountability, and equal treatment of media outlets.

“Without clear rules for how AI interacts with journalistic content, the business model of journalism will erode. Intellectual property must be fully respected, and copyright protection for journalistic content must be guaranteed in the digital age as well,” the group said in a joint statement.

Edited by Gabe Bullard/VdV