The Swiss Code of Obligations (CO) in general
The Swiss Code of Obligations (CO) is part of the Swiss Civil Code and it governs various aspects of contractual relationships and obligations in Switzerland. The CO covers a wide range of topics, including contracts, torts, leases, employment relationships, and more. Most rules provided by the CO are non-imperative, meaning that parties are allowed to agree differently from what is suggested in these provisions, and they apply only for those aspects not regulated in the contract and when disputes arise between the parties. However, some rules are imperative, and a different contractual agreement would simply be invalid.
By providing imperative and non-imperative rules, the CO gives parties the freedom to regulate their relationships as best suits their needs (this is also called contractual freedom and is enshrined in art. 19 para. 1 CO). At the same time it ensures that the interests of private individuals involved in a contract align with those of the broader society. It aims at promoting fairness, clarity, and consistency in contractual relationships, benefiting both the individuals involved and the overall societal framework.
The publishing contract
The publishing contract is governed by art. 380 et seq. Swiss Code of Obligations (CO).
According to Art. 380 CO, two contracting parties (author and publisher) mutually agree on specific performances:
- The author of a literary or an artistic work agrees to give the work to a publisher
- In return, the publisher (e.g. a publishing house) agrees to reproduce and distribute the work.
This is the core of the publishing contract. The details of this exchange can vary depending on the needs of the parties and the context.
Transfer of the copyrights:
In the context of publishing contracts, economic rights may be subject to an implicit or explicit transfer when it is necessary for the publisher to fulfill its obligations. This situation is specifically addressed in art. 393 of the Swiss Code of Obligations (CO). According to this article, in cases where one or more authors accept a commission to work on a project originated by a publisher, there is an explicit and mandatory transfer of economic rights to the publisher. Consequently, the publisher becomes the right holder of the entire work.
However, it’s essential to note that apart from art. 393 CO, it is not always compulsory for the author to transfer all copyrights to the publisher. Authors may choose to grant the right to publish their work through licenses while retaining ownership of their copyrights. This gives authors more flexibility in managing their intellectual property and allows them to maintain control over specific rights, even when collaborating with publishers. The extent of copyright transfer or licensing can vary and is often negotiated between the parties involved in the publishing contract.
Principle of exclusivity
Regardless of whether it is a transfer of copyrights or a license to publish, the law protects in principle the role of the publisher by preventing the author from using and further publishing a work or parts of it, unless prior specific agreement. This would be against the economical interests of the publisher.
Exceptions to the principle of exclusivity
However, there are certain exceptions to this principle of exclusivity for “newspaper articles or relatively short passages of magazine” and for “contributions to collections or anthologies and relatively lengthy magazine articles” (which also include scientific articles).
What happens if certain aspects are not mentioned in the contract?
If the contract does not address the transfer of copyrights or the acquisition of publishing rights, the necessary rights are considered granted to the publisher for the duration required to fulfill the contract, as per the statutory rule of Art. 381 para. 1 CO.
If the contract doesn’t specify the governing law for the contractual relationship, and there is a disagreement between the parties requiring the application of the law, art. 117 of the Federal Act on Private International Law states that the governing law should be the one associated with the habitual residence or the state where a business company is established for “the party that has to perform the characteristic obligation.” However, determining which party, the author or the publisher, holds the “characteristic obligation” may not be a straightforward task.
If the publishing contract does not specify its termination date, it will be considered expired once the performances are completed. This means when all the agreed copies of the work have been sold, or in the case of e-books, when the publisher stops promoting them. Once the publishing contract is no longer valid, the publisher loses any rights over the work. Any future publication, printing, or new editions of the work will be the responsibility of the author, not the one of the publisher.
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.
No, the publishing contract is governed by Art. 380 et seq. SCC.
When publishing a book, an anthology or a monograph, the author may not publish the work elsewhere, as long as the editions to which the publisher is entitled have not yet been exhausted (art. 382 para. 1 CO) This can be a problem if a publication should not only be published by a publishing house but also be made available as open access. The publishing house must then give its consent to make the work available as open access.
When publishing a paper or a contribution to collections, there is an exception to the general rule, permitting the re-publication as open access after 3 months from its first publication. (art. 382 para. 3 CO).