1.3 Use abroad

If a work created in Switzerland is used abroad, reference should not be made to Swiss law. The local law must be consulted, in most cases the copyright of the country in which the protected work is used.

Several countries however apply the law of the work’s country of origin (as in Greece or Portugal).

Moreover, if there is a contract between the user and the holder of the rights, the applicable law may even be determined in the contract (so-called choice of law). For contracts with international aspects: the parties can determine the applicable law by stipulating it in the contract. However, this choice does not apply to third persons not involved in the contract. If nothing is stipulated, the private international law of the country of the court dealing with the case is determinative.

Anyway each case will have to be examined individually and even more so because case law can be inconsistent.


Mandatory provisions

Even in cases where foreign law would be applicable, but the national law provides a mandatory provision in this situation, the competent courts have to apply this provision instead of the applicable foreign law. In Switzerland, this is fixed in Article 18 ILPA. Thus it is possible, for example, to apply mandatory provisions of Swiss cartel law to a licence agreement, which is otherwise subject to foreign law.

As an example a French court had to decide about the author’s moral right that is applicable as mandatory provision according to French law: In France, case law has been able to call upon the right to respect the integrity of a work in order to prohibit the use of a colourised version of a film within its territory, even if North American law would have been applicable to the creation of the work. This was justified on the grounds that local provisions regarding the moral right of the author (to that the integrity of a work belongs) are mandatory on French territory. (Arrêt Asphalt Jungle, Cass., Civ. 1, 28 mai 1991).


1.3-1 Will works created by Swiss nationals in Switzerland always be protected by Swiss law when being used abroad?

Generally, no. Most countries apply the law of the country in which the protection is claimed (“the lex loci protectionis principle“); usually this is the country in which the work is used. However, some countries apply the law of the country where the work originated for the whole litigation process or to address certain questions (e.g. to determine the holder of the rights). Consequently, the answer will depend on the actual case, the country in which the proceedings are initiated and the applicable law as dictated by the private international law of the country in question.