2.1.2 Individual character
The most difficult condition to determine for the copyright protection of a work is probably its individual character, because this always depends on the individual case. The work itself (and not the author) must show a certain degree of individuality or originality. This means it must stand out from what is considered usual and common. As a reference point, you should ask whether other people would have created something similar when given the same task. If this is the case, then there is a lack of individuality and the work does not fall under copyright protection.
For example, the creation of a telephone book – it generally lacks any individuality as phone books are structurally similar and do not require any creative “input”; this is also the case for the pharmacopoeia, a written record with legally prescribed medical and patient information – in this case, it does not have any individual character. If others had edited the pharmacopoeia, they would have designed it in a similar way, always in in accordance with particular scientific or medical regulations (cf. BGE 134 III 166, 172).
A work can still have an individual character even if similar works already exist, particularly if it stands out from existing works in terms of its content’s own characteristics and unique aspects, i.e. other authors would not have done something along similar lines.
Defining the limits of “individual” character is pretty difficult and it would eventually be the judge who would decide on its exact meaning on a case by case basis. Also, people use photos very often and a photograph may have a big value even if it doesn’t have individual character. Therefore, up from 1st April 2020 all photographs are protected under the modernized Swiss Copyright Act. That means, the request of having an individual character is not needed any more for photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography.
Website last updated: 1.4.2020