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), 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. 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.^[1]

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"^[2] 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).^[3]

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,^[4] 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 Confederacy in 1815, kept the French legislation (a law that dated to 1793) and thus became the first canton to have a copyright law. The first copyright law developed locally in Switzerland was that of the canton of Ticino, which became effective on March 20, 1835.^[5] 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;^[6] only in the revised constitution of 1874 did copyright become an issue of federal legislation.^[7] 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.^[8] 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.^[9]

A first revision of the law occurred in 1922. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It extended the duration of copyright to 30 years after the (last surviving) author's death (30 years p.m.a). This extension was retroactive (§62 of the 1922 law) and even placed works under copyright again if the copyright granted under the previous law had already expired. Anonymous or pseudonymous works were copyrighted for 30 years since they had been made known to the public, unless the author's identity was acknowledged within that time, in which case 30 years p.m.a. applied again. 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. The law covered works of the literature and the arts, including scientific works, maps, and photographs.^[10]

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.

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.^[11]

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).^[12] 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.^[13] The revised law entered in force on July 1, 2008.^[14]

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.^[15] The protection also expires if the death must be assumed.^[16] The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable.^[17] The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died.^[18] 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).^[19]

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.^[20]

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.^[11]

Official documents

The following are ineligible for copyright by law:^[21]

• laws, decrees, international treaties or other official acts
• decisions, protocols or reports by public authorities
• pieces of currency
• patents or patent applications

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 Melli 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",^[2] 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.^[22] 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.^[23] For lack of an individual expression of thought,^[24] 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:^[25]

• 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.

See also

• Bridgeman Art Library v. Corel Corp. for the equivalent leading case in U.S. law.
• International copyright

Notes and references

Authorities

• Bloch: Neue Schauspiel AG gegen Felix Bloch Erben, decision of the Swiss Federal Supreme Court of 13 January 1998; BGE 124 III 266.
• Marley: X. gegen Y. AG, decision of the Swiss Federal Supreme Court of September 5 2003; BGE 130 III 168.
• Meili: Blau Guggenheim gegen British Broadcasting Corporation BBC, decision of the Swiss Federal Supreme Court of April 19 2004; BGE 130 III 714.
• URG/LDA: Swiss Federal Copyright Act of 1992, ref. 231.1 (Urheberrechtsgesetz, URG (German), Loi sur le droit d’auteur, LDA (French), Legge sul diritto d’autore, LDA (Italian)

Literature

Copyright law in general

• Hilty, Reto M.: Urheberrecht, Stämpfli Verlang, Berne 2011. ISBN 978-3-7272-8660-5. (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. (German)
• Barrelet, D.; Egloff, W.: Das neue Urheberrecht, 3nd ed. Stämpfli Verlag, Berne 2008. ISBN 978-3-7272-9563-8. (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. (German)
• Rehbinder, M.: Schweizerisches Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2000. ISBN 3-7272-0923-2. (German)

Copyright protection of photographs

• Friedli, Lukas: Gibt es das Bildzitat im schweizerischen URG?, in: Jusletter 24. April 2006
• Hug, Gitti: Bob Marley vs Christoph Meili. Ein Schnappschuss. In: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 1/2005. Schulthess, pp. 57–65; ISSN 1422-2019.
• Schütz, Christoph: Fotografie und Urheberrecht: Ein Sorgenkind im Wettstreit der Therapeuten, in: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 5/2006. Schulthess, pp. 36-75; ISSN 1422-2019.
• Wild, Gregor: Urheberrechtsschutz der Fotografie, in: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 2/2005. Schulthess, pp. 87–95; ISSN 1422-2019.

Notes

1. ^ See the Legal information page at the Swiss Federal Institute of Intellectual Property.
2. ^ ^{a b} Art. 2 par. 1 URG.
3. ^ See the list of authorities supra for citations.
4. ^ 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.
5. ^ Rehbinder, p. 32.
6. ^ Rehbinder, p. 40.
7. ^ Rehbinder, p. 41.
8. ^ Chancellory of the Swiss Confederation: Übersicht fakultative Referenden 1874 - 1900. URL last accessed 2007-08-17.
9. ^ WIPO: Treaties Database - Contracting Parties: Berne Convention - Switzerland. URL last accessed 2007-08-17.
10. ^ Swiss Federal Law of December 7, 1922 on Urheberrecht an Werken der Literatur und Kunst; BBl 1922 III 960.
11. ^ ^{a b} Bloch.
12. ^ Institut für geistiges Eigentum (IGE, Swiss Copyright Office): Urheberrecht. URL last accessed 2007-08-17.
13. ^ Proceedings of the Swiss parliament: Final vote of the Ständerat; Final vote 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.
14. ^ Neues Urheberrecht: was ändert sich?, DRS, podcast from July 4, 2008.
15. ^ Art. 29 URG/LDA par. 2
16. ^ Ibid, par. 3.
17. ^ Art. 30 URG/LDA.
18. ^ Art. 32 URG/LDA.
19. ^ Art. 31 URG/LDA.
20. ^ Art. 39 URG/LDA.
21. ^ Art. 5 URG/LDA.
22. ^ Marley, p. 175.
23. ^ Meili, p. 720.
24. ^ Ibid, p. 717.
25. ^ The following is adapted from Wild, p. 92 et seq.

External links

• Latest updates about the Swiss Copyright Law, on the website of the Swiss Federal Institute of Intellectual Property.
• Swiss-Copyright, official website about the revision of the Swiss copyright law.
• Fotografie-Urheberrecht (German)
• (French) Droit d'auteur de photographie, website about copyright protection of photographs in Switzerland.
• (German), (English) Copyright, Patent, Trademark Information, Switzerland and International
• Federal Law on Copyright and Neighboring Rights 1992