Copyright law of Switzerland

The copyright law of Switzerland is based on the concept of "author's rights" (Urheberrecht in German, droit d'auteur in French, diritto d'autore in Italian), which is similar to the French copyright law, instead of the concept of copyright used in common law jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then.[1] In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty in the act, a process started in 2004 with the release by the Swiss Federal Council of a draft project.[2]

Copyrights in Swiss law last for 70 years after the death of the author (50 years after the death of the author for computer programs). All "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character"[3] are automatically protected by copyright, irrespective of whether copyright is asserted or not, but provided that it passes the threshold of originality necessary to constitute a protected work. In the case of photographs, the level of protection has been defined in two decisions of the Swiss Federal Supreme Court, the “Bob Marley” case (2003) and the “Meili” case (2004).[4] These decisions were superseded by the insertion of Article 2 paragraph 3bis, effective 1st April 2020.[1] "Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character."

Certain documents are specifically excluded from benefiting from copyright protection in Switzerland; they are mostly official documents, such as laws or ordinances, or pieces of currency, but patents or patent applications are also excluded from protection. These exceptions are covered in detail below.

History

Although first theoretic publications about copyright in Switzerland date back to 1738,[5] the topic remained unregulated by law until the 19th century. The first copyright legislation in Switzerland was introduced during the times of the French occupation in the Napoleonic era. Geneva, which joined the Swiss Confederation in 1815, kept the French legislation (a law that dated to 1793)[6] and thus became the first canton to have a copyright law, affording protection for 10 years p.m.a. The first copyright law developed locally in Switzerland was that of the canton of Ticino, which became effective on March 20, 1835.[7] In the canton of Solothurn, a copyright law entered in force in 1847.

The first constitution of Switzerland of 1848 left copyright issues to the cantons;[8] only in the revised constitution of 1874 did copyright become an issue of federal legislation.[9] The first federal copyright law in Switzerland was passed by the Swiss parliament on April 23, 1883 and entered in force on January 1, 1884.[10] The copyright law of 1883 specified a copyright term of 30 years p.m.a (or 30 years from the publication of posthumous works) and covered works of literature and the arts (Art. 2); photographs required registration and the copyright lasted 5 years from registration (Art. 9). The exclusive rights included the right to translate a literary work (art. 1).[11]

Two years later, Switzerland was a founding member of the Berne Convention for the Protection of Literary and Artistic Works, which became effective on December 5, 1887.[12]

In 1922 this first federal copyright law was replaced. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It clarified what exactly "works of literature and of the arts" were (Art. 1), and extended copyright to include photographic works and collections. The copyright term remained 30 years; pre-existing works that we not covered by the earlier law(s) were now also copyrighted (art. 62). Works that became known to the public only after the death of the author were copyrighted until the shorter of 50 years after the death of the author or 30 years since they became known. In the case of anonymous works, the editor or publisher acquired the copyright (Art. 8). The law covered works of the literature and the arts, including scientific works, maps, and photographs.[13]

In 1955, a revision of the 1922 law extended the copyright term from 30 to 50 years. This extension was not retroactive and applied only to works that were still copyrighted in 1955 (art. 66bis).[14]

Already three years later, work on an omnibus revision of the law was begun, but it took more than 30 years to complete this project until in 1992 a new copyright law was passed. It entered in force on July 1, 1993 and extended the copyright term again non-retroactively to 70 years.[15]

In 2004, another revision of the Swiss copyright law was begun with the goal of making the law compliant with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).[16] It was finally approved by both chambers of the Swiss parliament on October 5, 2007. At the same time, the parliament also ratified the Swiss adherence to the WCT and the WPPT.[17] The revised law entered in force on July 1, 2008.[18]

Duration of protection

Copyright protection for most protected works expires 70 years after the death of the author under Swiss law, the only exception being computer programs, which are protected for 50 years after the death of the author.[19] The protection also expires if the death must be assumed.[20] The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable.[21] The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died.[22] Works of unknown authors enter the public domain 70 years after the date of publication (even if the author is identified once the protection has ended).[23]

Swiss law also protects performers' rights; the duration of protection is 50 years, starting from the end of the year when the work was performed.[24]

As a result of the non-retroactive revision of 1992, when the 50-year copyright term was extended to 70 years, works that were already in the public domain in 1993, when the new law started being applied, do not benefit from renewed protection; therefore, all works made by authors deceased in 1942 or before are in the public domain in Switzerland.[15]

Official documents

The following are ineligible for copyright by law:[25]

It follows that photographs taken from or of these documents are also in the public domain. However:

  • a photograph of an official document may constitute a protected work of its own if the photograph is sufficiently original (see below);
  • a photograph taken from an official document may have been copyrighted by someone other than the state and been reproduced with permission in the official document.

Lack of originality
In the Bob Marley decision, a photograph of Bob Marley by a spectator was deemed to have enough character to be protectable by Swiss law.
Likewise in the Meili decision, a photograph of Christoph Meili was deemed not to have an individual character.

Only "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character",[3] are protected by copyright. What exactly individuality (also referred to as originality) means for photographs has long been a focus of dispute.

In its 2003 Marley decision, the Federal Supreme Court found that the picture at issue (shot by a spectator with a handheld camera) had the required individual character by virtue of the aesthetic appeal of the picture, combined with the orientation of the picture's components and the distribution of light and shadow. It also found that it was a "creation of the mind" by being shot at a specific time during the singer's movement on the stage.[26] Accordingly, the Court held that the picture was protected by copyright.

In its 2004 Meili decision, the Court found that the picture at issue, shot by a reporter to document Christoph Meili with the files he had taken from his employer, lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use.[27] For lack of an individual expression of thought,[28] therefore, the Court held that the image was not copyrighted.

Legal scholarship has attempted to summarise the Federal Supreme Court's jurisprudence on the threshold of originality as follows:[29]

  • Images where only the object, but not the photograph, is individual are not protected, as e.g. in art catalogue photographs. Of course, the copyright status of the object depicted, e.g. a painting, must be considered independently.
  • "Merely" illustrative and portrait images also tend not to be protected, at least if the composition, post-processing etc. show no individual expression of thought.
  • Images are not protected per se because their object is famous or they attract great attention (e.g. the Abraham Zapruder pictures of the Kennedy assassination). On the other hand, an image can be a "snapshot" and still be protected as an individual work.
  • The impression is given that the mere aesthetic appeal of a photograph may contribute to its originality.

But see: Art. 2 para 3bis, effective 1 April 2020.[1] "Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character."

See also

Notes and references

Authorities
  • Hilty, Reto M.: Urheberrecht, Stämpfli Verlang, Berne 2011. ISBN 978-3-7272-8660-5. (in German)
  • Rigamonti, Cyrill P.: Geistiges Eigentum als Begriff und Theorie des Urheberrechts. UFITA-Schriftenreihe Band 194, Nomos Verlagsgesellschaft, Baden-Baden 2001. ISBN 3-7890-7534-5. (in German)
  • Barrelet, D.; Egloff, W.: Das neue Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2008. ISBN 978-3-7272-9563-8. (in German)
  • von Büren, R.: Urheberrecht und verwandte Schutzrechte, in: Pedrazzini, Mario M.; von Büren, Roland; Marbach, Eugen: Immaterialgüter- und Wettbewerbsrecht, Stämpfli Verlag AG, Berne 1998, ISBN 3-7272-0913-5, p. 59 et seq. (in German)
  • Rehbinder, M.: Schweizerisches Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2000. ISBN 3-7272-0923-2. (in German)

Notes
  1. "Federal Act on Copyright and Related Rights 1992". Swiss Federal Council - English translation (select DE, FR or IT for legally enforceable versions). 1 April 2020.
  2. See the Legal information Archived January 19, 2005, at the Wayback Machine page at the Swiss Federal Institute of Intellectual Property.
  3. Art. 2 par. 1 URG Archived January 17, 2013, at the Wayback Machine.
  4. See the list of authorities supra for citations.
  5. Rehbinder, p. 32; mentioning the dissertation of Johann Rudolf Thurneisen, Dissertatio juridica inauguralis de recursione librorum furtiva, zu Teutsch dem unerlaubten Büchernachdruck, Basel, 1738. Thurneisen already suggested an international treaty by which countries should protect each others copyrights based on reciprocity.
  6. "Compte rendu des travaux du congrès de la propriété littéraire et artistique". Congress of the French Republic. 19 July 1793.
  7. Rehbinder, p. 32.
  8. Rehbinder, p. 40.
  9. Rehbinder, p. 41.
  10. Chancellory of the Swiss Confederation: Übersicht fakultative Referenden 1874 - 1900 Archived January 15, 2016, at the Wayback Machine. URL last accessed 2007-08-17.
  11. Swiss Federal Law of April 23, 1883 on Urheberrecht an Werken der Literatur und Kunst; BBl 1883 III 241.
  12. WIPO: Treaties Database - Contracting Parties: Berne Convention - Switzerland Archived May 15, 2006, at the Wayback Machine. URL last accessed 2007-08-17.
  13. Swiss Federal Law of December 7, 1922 on Urheberrecht an Werken der Literatur und Kunst; BBl 1922 III 960.
  14. Swiss Federal Law of June 24, 1955 on Änderung des Bundesgesetzes betreffend das Urheberrecht an Werken der Literatur und Kunst; BBl 1955 I 1137.
  15. Bloch.
  16. Institut für geistiges Eigentum (IGE, Swiss Copyright Office): Urheberrecht Archived September 10, 2007, at the Wayback Machine. URL last accessed 2007-08-17.
  17. Proceedings of the Swiss parliament: Final vote Archived May 1, 2014, at the Wayback Machine of the Ständerat; Final vote Archived May 1, 2014, at the Wayback Machine of the Nationalrat; Bundesbeschluss über die Genehmigung von zwei Abkommen der Weltorganisation für geistiges Eigentum und über die Änderung des Urheberrechtsgesetzes (Text of the decree ratifying the WCT and the WPPT; in German); Änderung des Bundesgesetzes über das Urheberrecht und verwandte Schutzrechte (Text of the changes to the 1992 copyright law; in German). URLs last accessed 2007-10-09.
  18. Neues Urheberrecht: was ändert sich? Archived February 11, 2012, at the Wayback Machine, DRS, podcast from July 4, 2008.
  19. Art. 29 URG/LDA par. 2 Archived May 6, 2013, at the Wayback Machine
  20. Ibid, par. 3 Archived May 6, 2013, at the Wayback Machine.
  21. Art. 30 URG/LDA Archived May 6, 2013, at the Wayback Machine.
  22. Art. 32 URG/LDA Archived May 6, 2013, at the Wayback Machine.
  23. Art. 31 URG/LDA Archived May 6, 2013, at the Wayback Machine.
  24. Art. 39 URG/LDA Archived May 6, 2013, at the Wayback Machine.
  25. Art. 5 URG/LDA Archived May 12, 2013, at the Wayback Machine.
  26. Marley, p. 175.
  27. Meili, p. 720.
  28. Ibid, p. 717.
  29. The following is adapted from Wild, p. 92 et seq.
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