6.1.2 Action for performance

Art. 62 CopA stipulates different actions which aim to prevent or limit the effects of an infringement or assign damages, and includes regulations for damages.

In order to be able to justify this action, the risk of copyright infringement must be imminent and tangible; a mere abstract speculation is not sufficient. The risk must also be current, i.e. it must exist up to the moment the judgement is issued (cf. BGE 124 III 72). A risk is current especially if the person committing the infringement has already committed similar acts in the past (BGE 128 III p. 100) 96) and is therefore likely to commit an infringement again. A risk of reoffending exists if the defendant has already committed a similar act and claims (as part of their defence in court) to have acted lawfully or refuses to admit that their conduct was wrongful (BGE judgement 4A_45/2012 c 5.2.2; BGE 124 III 72). The risk is also current if there are clear indications that the copyright infringement acts are imminent.

The claimant must provide evidence that an infringement is ongoing, which is easier to do than demonstrating the existence of a risk of an act in the future. The claimant only needs to provide documentary evidence or testimonies to show that the infringement is still ongoing. For example, proving that a website (or the site’s web hosting service provider) is using images which infringe copyright.

The owner of the rights may need this information to defend their rights or to calculate the damage caused. The affected persons are anyone who has come into possession of the disputed goods.