5.10.3 Activities subject to surveillance
As a basic principle, the author is free to exercise their exclusive rights but can choose to trust their rights to a collecting society. Usually, the activities of such societies in this respect are not subject to state supervision. This is only the case for a few specific areas, as described in art. 40 CopA (C. GOVONI/A. STEBLER, Die Bundesaufsicht über die kollektive Verwertung von Urheberrechten, in schweizerisches Immaterialgüter- und Wettbewerbesrecht, II/1, 2nd ed., Basel/Frankfurt 2006, p. 429 et seq.). This concerns certain acts of exploitation of musical works, exercising exclusive rights subject to obligatory collective management and exercising rights to remuneration for legal licences.
State supervision for non-theatrical musical works
For non-theatrical musical works, the Swiss Confederation supervises the management of rights to perform and broadcast works and produce phonograms and videograms (Art. 40 para. 3 (a) CopA). This remit covers, for example, the organisation of concerts and dances, the broadcasting of music over the radio and television and the production of discs, music videos and films which contain music.
State supervision for management of exclusive rights
The management of exclusive rights is also subject to state supervision for all categories of work where, according to the law, the exclusive rights must be exercised by collecting societies. In certain situations, the CopA forces the author to use a collecting society as an intermediary to assert their rights. This restriction of the author’s power of disposal is often justified by a desire to simplify the legal position of those who use works and avoid the prospect of them being refused by individual rights holders who do not want to grant licences (BGE 133 III 568, c. 4.2). According to art. 22 CopA, obligatory collective management applies to the right to rebroadcast programmes (in particular via a cable network or digital television service) or communicate these programmes publicly (e.g. on a large screen or via a radio playing in a shop). Obligatory collective rights management is also stipulated in Art. 22 (a), 22 (b), 22 (c) and 24 (b) CopA. For example, for the use of archived radio and television productions or the use of orphan works, i.e. works whose rights holders are unknown or cannot be found. The Swiss Confederation may supervise certain activities of collecting societies in all these situations.
State supervision for management of rights
Also supervised is the management of rights to remuneration for the rental of copies of works (Art. 13 CopA), for private use, either for educational and internal information purposes or for documentation purposes within enterprises (Art. 19 and 20 CopA). The same applies to the management of rights to remuneration for the reproduction and distribution of copies of works in a form accessible to people with sensory disabilities (Art. 24c CopA) and for the public use of phonograms and videograms available on the markets (Art. 35 CopA). These are situations where it is difficult for the authors themselves to supervise the use of the works or where the legislator has implemented a requirement to obtain a statutory licence in order to restrict the use of the works (V. SALVADÉ, Les droits à rémunération instaurés par la loi fédérale sur le droit d’auteur et les droits voisins, in sic! 5/1997, p. 449 and the references cited). In other words, the use of works is permitted by law, although the law makes provision for monetary compensation to be paid to the rights holders.
State supervision of National Societies
Essentially therefore, we can say that SUISA’s activities are largely supervised by the Swiss Confederation, which is also the case for Suissimage and Swissperform. However, ProLitteris and the SSA are supervised less closely. These five societies are supervised, e.g. as regards the right to rent works as defined in Art. 13 CopA or to use works for educational purposes as defined in Art. 19 para. 1 (b) and Art. 20 para. 2 CopA. ProLitteris, however, is not supervised, e.g. when managing the right to reproduce a work of representational art in a magazine, just as the SSA is not supervised when it deals with the right to perform a play.