2. WHAT… is a protected work?

“The Copyright Act does not regulate the protection of authors, but rather the copyright protection of works.”

(Reto M. Hilty, Urheberrecht, 11th edition, p. 65)

A “work protected by copyright (protected work)” is at the core of copyright. Without such a work, there would be no art forms such as painting, music, film, theatre, literature and architecture; science would also be far worse off in terms of content. “Intellectual property” comes about through intellectual effort and creativity, and is in turn indispensable for the cultural and scientific life of a society. This effort is placed under special protection so that it can be used according to its value, and, in particular, so that its quality will not be diminished by forgery and unlimited reproduction. However, the term “protected work” triggers a sense of unease in many people. This is because it requires people to reflect on what they may do with a work, and vice versa, as all rights, prohibitions and exceptions (limiting provisions) of copyright relate only to “protected works”. On the other hand, if works are not protected by copyright, no infringements of copyright can be committed.


Protection outside copyright

Copyright is not the only legal aspect which must be considered when you want to use the content of a work. There are other statutory, contractual or ethical regulations which can play a role irrespective of whether a work is protected by copyright or not and whether the possible uses of a work are permitted pursuant to the Copyright Act. This applies, in particular, to the right of personality, the right to privacy, the prohibition of unfair competition and the plagiarism ban.

For example, a paparazzi photo of a celebrity that the photographer may not have been allowed to take due to the infringement of the celebrity’s personality rights; or a scientific work which is no longer protected by copyright is used in its entirety without citing the source – from a copyright perspective, it may be used; however, without citing the source, it amounts to plagiarism, i.e. it breaches good scientific practice.