Copyright Law in Switzerland- A General Overview
Legislation – Federal Act on Copyright and Related Rights (Copyright Act, CopA)
Competent administration – Swiss Federal Institute of Intellectual Property
Address – Stauffacherstrasse 65, CH-3003 Berne
Website – http://www.ige.ch
- the Berne Convention for the Protection of Literary and Artistic Works;
- the Agreement on Trade-related Aspects of Intellectual Property Rights;
- the World Intellectual Property Organisation (WIPO) Copyright Treaty;
- the WIPO Phonogram Producers and Performers Treaty;
- the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961);
- the Convention for the Protection of Producers of Phonograms against Unauthorised Duplications of their Phonograms (1971); and
- the Convention relating to the Distribution of Program-Carrying Signals transmitted by Satellite (1974).
As the work is protected as soon as it is created therefore, there is no system for copyright registration under Swiss Copyright law.
The CoPA protects the authors, performers, producers, owners of following subject matter:
- Literary and Artistic works
- Phonograms and audio-visual fixations and broadcasting organisations
- Collective Rights Management organisations
The following are categorized as Works protected under CoPA:
- literary, scientific and other linguistic works;
- musical works and other acoustic works;
- works of art, in particular paintings, sculptures and graphic works;
- works with scientific or technical content such as drawings, plans, maps or three-dimensional representations;
- works of architecture;
- works of applied art;
- photographic, cinematographic and other visual or audio-visual works;
- choreographic works and works of mime.
- Computer programs
- Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography
- Drafts, titles, and parts of works, insofar as they are intellectual creations with an individual character
Derivative Works are those intellectual creations which are based on pre-existing works however the individual character of the new work remains identifiable. Example for these can be translation of existing work, adaptation in to audio-visual or other forms.
Works not Protected
Works excluded from copyright protection are listed as:
- acts, ordinances, international treaties and other official enactments;
- means of payment;
- decisions, minutes and reports issued by authorities and public administrations;
- patent specifications and published patent applications.
Note: Any official or legally required collections and translations of the above works are also not protected under Copyright.
Author of Copyright work in Switzerland
An author is defined as a natural person who has created the work. Where there are more than one author to a work, then all such persons jointly represent the copyright in the work.
In case of joint authorship, the work must be used with the consent of all authors, unless otherwise agreed between the authors. Further, each author has the right to independently bring an action of infringement, but the relief must be sought in benefit for all authors.
The joint authors are also allowed to use their own contribution independently to the extent that such use does not impair the exploitation of the joint work.
Presumption of authorship is made in favor of the person whose name, pseudonym or distinctive sign appears on the publication of the work. In case of pseudonym or distinctive sign, the editor of the work can exercise the copyright in the work. However, if the editor is also not named then the person who publishes the work can exercise the copyright.
Recognition of Authorship means that in addition to the exclusive rights the author also has the right to be recognized as author of the work. The author has an exclusive right to decide whether, when, how and under what author’s designation his work is published for the first time. The author has the right to decide the following:
- whether, when and how the work may be altered;
- whether, when and how the work may be used to create a derivative work or may be included in a collected work.
The work is considered to be published if the work is made available for the first time to a large number of persons who do not form part of private circle, either by the author or through his consent.
Note: Private Circle is circle of persons closely connected to each other, such as relatives or friends.
Rights of the Author of Work
The author is also vested with the following right:
- To produce copies of the work, such as printed matter, phonograms, audio-visual fixations or data carriers;
- To offer, transfer or otherwise distribute copies of the work.
- To recite, perform or present a work, or make it perceptible somewhere else or make it available directly or through any kind of medium in order to make the work accessible from any place and at any time chosen.
- To broadcast the work by radio, television or similar means, including by wire.
- To retransmit works by means of technical equipment, the provider of which is not the original broadcasting organisation, in particular including by wire
- To make works made available, broadcast and retransmitted perceptible
Note: Exclusive rental rights are also available with the author of the computer program.
The law provided that even when a third party is authorized by any agreement or law, enabling such third party to alter the work or to use it to create derivative work, even in such circumstances the author has the right to oppose any distortion of the work that is in violation of his personal rights.
Author and Owner of Work
Where vide an arrangement the author transfer its rights to another person/ entity, then in accordance with the arrangement the ownership of the work is determined.
Any person who makes available the literary or artistic work or rents it, is liable to pay remuneration to the author, however no such obligation exists for works of architecture, copies of applied art and work rented or lend for a contractually agreed use.
Further, claims of remuneration can only be asserted by the approved collective rights management organisation.
The law provides that the person who makes an audio-visual work available in order to enable that person to make the work accessible, at a place and at a time chosen, then such person owes remuneration to the author who created such audio-visual work. However, no remuneration is payable if:
- Work is exploited by author himself or through his heirs
- Commissioned work by broadcasting organisations for profile films, advertising or promotional work, or other work in field of journalism that are created under an employment contract or commissioned
- Archived audio-visual work of broadcasting organisations.
- Orphan works.
Only authors are entitled to right to remuneration which is unalienable and un-waivable. In case of author of audio-visual work, which was produced by person with no registered office in Switzerland or not domiciled in Switzerland, will have right to remuneration if the country where the work was produced also has a collective rights management organisation for making available such work.
The owner or person in possession of the work is liable to provide the author with access to the work to the extent necessary for author to exercise his/ its copyright, however this is limited to the legitimate interest of the owner.
Copyright Protection in Switzerland- Exceptions
Exceptions to copyright, which means the use of a work not amounting to infringement of a copyright, is mentioned under Chapter 5 of the Switzerland Copyright Act. It encompasses provisions from Article 19- Article 28. The exceptions are mentioned as under along with a brief explanation:
- Private Use: This includes personal use or use with friends and family (close relatives), usage by teachers to teach (educational purpose) and usage by any organisation / institution internally (for information and documentation purposes). However, complete or substantial copying of a work which is commercially available is not allowed. This exception does not include computer programs. Private use, exceeding the scope of this exception, is liable to invoke remuneration towards the author.
- Interoperability: This exception includes the decoding of computer program to the extent of development, maintenance and interoperability of computer programs.
- Dissemination of Broadcast: Broadcasted work may be used without alterations only. This extends only to programs that can be received and broadcasted in Switzerland. However, this includes broadcasted archived works. (The exception only extend to broadcasting organisations or authorised collective rights management organisations and not individuals.)
- Orphaned Works: Orphaned works (works with no traceable owner) can be used with permission of authorised collective rights management organisations if the work is publicly owned or copies of which are made publicly available in Switzerland. (Note: Orphaned works are considered to be published works.)
- Broadcast of Musical works: The dissemination may only be done by authorised collective rights management organisations.
- Compulsory Licensing (Phonograms): If a musical recording (with or without lyrics) is circulated in Switzerland, then any commercial organization with permission of the author to circulate the same with remuneration to the author.
- Archive/ backup/ temporary copies: It is allowed under the copyright laws to make copies of the work to ensure preservation (such as one copy for the library). Such archived copies must not be accessible to the general public. Public copies can be made in view that no financial gain shall arise because of such use of the copy. Transient and incidental copies can also be made, such as copies made part of a technological process. These temporary copies should not derive any economic significance.
- PWD: A work may be reproduced, distributed or made available in a format which is accessible to people with disabilities insofar as the work cannot be perceived, or can only be perceived with difficulty, in its already published form.
- Scientific Research: Use of work for or in the process of a scientific research is permitted. (Such use does not extend to computer programs.)
- Inventories: Part of a copyrighted work may be made public in order to maintain public records and archives of the work. For example, the use of the name/ title of the book in copyright register or work available in public library.
- Quotations: Published works may have their excerpts quoted as long as due credit is given to the author/ owner of the work and substantial copy has not occurred.
- Museums/ Exhibitions/ Auctions.
- Works on Premise open to public.
- Current Events: In the course of reporting of current events a protected work may be showcased as required, i.e. as is necessitated as per the news.
Term of Copyright Protection in Switzerland
Under the Copyright law, the protection is granted as under:
- 50 years after the death of author – Computer Programs
- 50 years after production of photographic depictions and depictions of 3D objects produced by photography or similar process.
- 70 years after the death of the author, in case of all other works
In cases where the author is assumed to be dead for more than 50 years or 70 years, as per above applicable, then the protection in such cases ceases to exists.
In cases of joint authorship, not applicable in case of photographic depictions and depictions of 3D objects (as mentioned above), the protection expires as under:
- 50 years after the death of last surviving author – Computer Programs
- 70 years after the death of last surviving author, in case of all other works.
In cases where individual contributions can be separated then each contribution expires after 50 or 70 years, as applicable from above, after the death of respective author. Further in case of films and other audio-visual works, the calculation of the term of protection is based solely on the date of death of the director.
Similarly, where the author is unknown, then the protection of that work will last for 70 years from its publication, and if the work is published in instalment then 70 years from the last instalment.
Note: For calculating the term of protection, the 31st December of the year in which the work was created will be initiating point.
Legal Protection/ Remedies
Under the Copyright law, any person whose copyright or related right has been infringed or threatened, may make a request before the court:
- To prohibit an imminent infringement
- To remedy an existing infringement
- Require defendant to provide information on the unlawfully manufactured or placed on market items for commercial or industrial customers.
Note: An action to seek damages, satisfaction and handing over of profits is reserved. Further, exclusive licensee is also authorized to bring separate action unless expressly prohibited under the agreement.
The person making request for preliminary measures can also request the court for following measures:
- secure evidence;
- establish the origin of items unlawfully manufactured or placed on the market.
- preserve the existing state of affairs; or
- provisionally enforce claims for injunctive relief and remedy infringement.
When a complaint is filed by the persons whose rights have been infringed against any person who wither wilfully or unlawfully commits any below mentioned acts (Art. 67):
- uses a work under a false designation or a designation that differs from that decided by the author;
- publishes a work;
- modifies a work;
- uses a work to create a derivative work;
- produces copies of a work in any manner;
- offers, transfers or otherwise distributes copies of a work;
- recites, performs or presents a work or makes a work perceptible somewhere else either directly or with the help of any kind of medium;
- makes a work available through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them;
- broadcasts a work by radio, television or similar means, including by wire, or retransmits a broadcast work by means of technical equipment, the operator of which is not the original broadcasting organisation
- makes a work made available, a broadcast work or a retransmitted work perceptible
- refuses to notify the authority concerned of the origin and quantity of items in his possession that have been unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial consumers
- rents out a computer program
will be liable for custodial sentence not exceeding one year or a monetary penalty. Where any such act mentioned hereinabove is done for commercial gain then such person is prosecuted ex officio and penalty of such offence will be custodial sentence not exceeding five years combined with monetary penalty.
Where any person omits to indicate the source required under the CoPA, especially under exceptions to copyright, then in such cases the person is liable to a fine on complaint by person whose rights have ben infringed.
In case of related rights, where upon a complaint is filed by the persons whose rights have been infringed against any person who wither wilfully or unlawfully commits any below mentioned acts (Art 69):
- broadcasts the performance of a work by radio, television or similar means, including by wire;
- fixes a performance of a work on blank media;
- offers, transfers or otherwise distributes copies of a performance of a work;
- retransmits a broadcast performance of a work by means of technical equipment, the operator of which is not the original broadcasting organisation;
- makes a performance of a work made available, a broadcast performance of a work or a retransmitted performance of a work perceptible;
- uses a performance of a work under a false name or under a name other than the artist name designated by the performer; eter.73
- makes a performance of a work, a phonogram or audio-visual fixation or a broadcast available through any kind of medium in such a way that persons may access them from a place and at a time individually chosen by them;
- reproduces a phonogram or audio-visual fixation and offers, transfers or otherwise distributes the reproductions;
- retransmits a broadcast;
- fixes a broadcast on blank media;
- reproduces a broadcast fixed on blank media or distributes copies of such reproductions;
- refuses to notify the responsible authority concerned of the origin and quantity of the carriers of a performance protected under Articles 33, 36 or 37 in his possession that have been unlawfully manufactured or placed on the market, or to name the recipients and disclose the extent of any distribution to commercial and industrial customers.
Will be liable to a custodial sentence not exceeding one year or a monetary penalty. Where any such act mentioned hereinabove is done for commercial gain then such person is prosecuted ex officio and penalty of such offence will be custodial sentence not exceeding five years combined with monetary penalty.
Where an offence relating to technical protection measures and/ or rights management information has occurred, then upon a complaint by person whose protection has been violated and any person who wilfully and unlawfully commits any of the following acts (Art. 69a):
- circumvents effective technological measures under Article 39 paragraph 2 with the intention of illegally using works or other protected subject-matter;
- manufactures, imports, offers, transfers or otherwise distributes, rents, gives or advertises for use, or possesses for commercial purposes devices, products or components, or provides services which:
- are the subject-matter of sales promotion, advertising or marketing with the goal of circumventing effective technological measures,
- have only a limited commercially significant purpose or use other than the circumvention of effective technological measures, or
- are primarily designed, manufactured, adapted or performed for the purpose of enabling or facilitating the circumvention of effective technological measures;
- removes or alters electronic rights management information on copyright and related rights under Article 39c paragraph 2;
- reproduces, imports, offers, transfers or otherwise distributes, broadcasts or makes perceptible or available works or other protected subject-matter on which electronic rights management information under Articles 39c paragraph 2 have been removed or altered.
Will be punishable with monetary penalty. Where any such act mentioned herein above is done for commercial gain then such person is prosecuted ex- officio and penalty of such offence will be custodial sentence not exceeding one year or a monetary penalty.