FAQs (Frequently Asked Questions) are a collection of questions and answers about the legal aspects related to the digitalization process and the use of new media and technologies in academic contexts. They provide simple answers to specific questions, referring to detailed explanatory texts through several links. In this way, FAQs offer a first introduction and orientation in the complex field of copyright.
LIST OF ALL FAQs
1.1-1 In which situation does the question of applicable law arise?
In any situation which involves different countries: a work is used abroad, a contract is concluded between two persons residing in two different countries, a copyright is infringed in a country other than the one in which the holder of the rights lives, etc.
1.1-2 What are the challenges of determining the applicable national law in cross-border situations in the domain of copyright?
Copyright legislation is not the same everywhere: one law might provide for the protection of a work while another will deny it due to a lack of originality, the protection period may have expired in one country (for example Switzerland protects computer programs for 50 years only), the starting point of the protection period may be different, the holder of the rights may be different (see for example the specific provision regarding collective works in France), copyright exceptions are not the same… There are many points that will be resolved differently depending on the countries involved.
1.2-1 As part of the research for his dissertation, a Swiss student wants to photocopy an article published in a scientific journal which is available in the University of Geneva library. Which law will be applicable in this situation?
As the work is being used in Switzerland, Article 110 of the IPLA indicates that Swiss law is applicable, regardless of the nationality of the article’s author or the editor of the journal.
1.2-2 A Cambodian artist creates a sculpture to stand in front of the University of Lucerne. The university would like to replace the photo in its brochures with one that includes the sculpture. Should Cambodian or Swiss law apply in this situation?
As the work is being used in Switzerland, Article 110 of the IPLA indicates that Swiss law is applicable. The nationality of the artist is not a decisive factor here, because the IPLA and the Swiss Copyright Act do not distinguish between Swiss nationals and foreign nationals and Swiss as well as foreign authors may claim the same protection.
1.2-3 A physics teacher wants to use some third-party content (e.g. a chart) which is probably protected by copyright and decides to use it in the lesson he is preparing. Which law applies to the use of this content?
To answer this question, we need to ask where the content is being used. If the content is being used in Switzerland, Swiss copyright law will apply. This is also the case if the teacher includes the third-party content in a PowerPoint presentation, which he prints out and hands out to his students and which he only does in Switzerland. The teacher benefits from the limiting provisions of copyright – in this case the private use for educational purposes, Art. 19.1 CopA – and he may use the content under certain conditions without consent of the author.
1.2-4 Can the authorisation for the use of the content without consent of the author by the limiting provision of private use for educational purposes justify using a work abroad?
The exceptions stipulated in Article 19 of the Swiss Copyright Act, that means the exception for educational purposes, do not apply outside Switzerland. The teacher’s use of copyrighted content abroad is not covered by Swiss law, but by the applicable foreign law. This means we need to be careful as the conditions for the use of a work provided for in foreign law could turn out to be more stringent.
1.3-1 Will works created by Swiss nationals in Switzerland always be protected by Swiss law when being used abroad?
Generally, no. Most countries apply the law of the country in which the protection is claimed (“the lex loci protectionis principle“); usually this is the country in which the work is used. However, some countries apply the law of the country where the work originated for the whole litigation process or to address certain questions (e.g. to determine the holder of the rights). Consequently, the answer will depend on the actual case, the country in which the proceedings are initiated and the applicable law as dictated by the private international law of the country in question.
1.4-1 A French national living in France but studying in Switzerland is mandated by his university to translate a German novel. They stipulated in the contract that Swiss law is applicable. Is this mandatory for everybody, even for third persons?
Within the contractual relation between the student and the University Swiss law will be applicable, because the parties used their “contractual autonomy” and chose the applicable law (Art. 116 IPLA). Conversely, in dealings with third persons (not involved in the contract), e.g. with the German author, the usual rules of conflict of laws will apply as the third persons are not party to the contract; hence the contract’s clauses are not mandatory for them.
1.4-2 A French translator living in France signs a contract with the University of Geneva to transfer the copyright for a translation. They do not stipulate the applicable law. Suppose the Geneva courts would be competent, which law applies?
As the translator is transferring her copyrights, the court in Geneva will apply the Swiss international private law (IPLA).This stipulates in Art. 122.1 IPLA that the law of the country of residence of the translator (hence the person that transfers its copyrights) applies, i.e. French law.
1.5-1 A professor teaching at the University of Neuchâtel and Lyon wants to publish a photo that he took of Zurich station and which features the Niki de Saint Phalle sculpture on his French-language blog on railway history. How should this be approached?
The lecturer’s blog can be considered as aimed at French and Swiss audiences, which implies that France and Switzerland can be considered as the places where the work can be accessed. While the use of the photo may not cause any problems in Switzerland (here the limiting provision of Article 27 of the Swiss Copyright Act, works on premises open to the public, applies), this kind of limiting provision does not exist in France. The artist’s successors in title may claim an infringement of their copyrights (use of the photos without consent) in France.
2.1-1 When is a work protected by copyright?
Works which were created by a human being (“intellectual creation“), are perceptible to the senses and have a certain amount of individuality (i.e. stand out from existing works) are protected by copyright (Art. 2 para. 1 CopA).
2.1-2 Does it matter whether other people consider a work to be “offensive” or “mediocre”?
No, aesthetic or moral aspects must be excluded when it comes to the question of copyright protection of a work. It is irrelevant why the work was created. However, the rights of others can be infringed by the work, in particular the personality right, or the work can be considered a crime, e.g. defamation.
2.1-3 Is a work only protected by copyright when it is particularly valuable in economic, historical or artistic terms?
No, the value of the work is irrelevant.
2.1-4 From when does a work enjoy copyright protection?
The work is protected by copyright as soon as it is created (Art. 29 para. 1 CopA). Therefore, the work does not also have to be published to gain copyright protection.
2.1-5 Do I need to include the copyright symbol © in my work to protect it?
No, you do not need to affix the copyright symbol to your work or to register it to gain copyright protection. It is also not necessary to affix a warning message, such as “all rights reserved”.
2.1-6 Can I assume that a work that has a copyright symbol is protected by copyright?
Pursuant to Swiss copyright law, there is no requirement to have a distinctive sign on a protected work, and it is not possible to register such a work. The copyright protection of a work depends on whether the conditions pursuant to Art. 2. para. 1 CopA have been fulfilled. When they have, a work is protected from the time it is created (Art. 29 para. 1 CopA).However, if a copyright sign has been affixed, this can be an indication for the user that it could be a protected work.
2.1.1-1 Is an image from a surveillance camera a protected work?
No, this is not a human (intellectual) creation; instead, the image is created completely automatically without any human intervention.
2.1.4-1 Can the title of a book “Overview of Copyright” be protected by copyright?
No, the title lacks unique, individual character. There are no unusual, surprising terms or words or combinations of words. Other people could have also come up with this book title.
2.1.4-2 A PhD student has only written the introduction to her thesis to date. May a lecturer publish this without further ado?
No, unfinished works (in this case, the introduction) can also be protected by copyright, even if the work is still in the initial stages. There is a certain creative, individual effort even in an introduction as the author explains their idea and motivation in their own words.Furthermore, only the PhD student may exploit her right to first publication pursuant to Art. 9 para. 2 CopA. This is the moral right of the author and can also not be transferred to the lecturer.
2.1.4-3 Is the so far incomplete draft of a novel a protected work?
Yes, as long as the criteria specified in Art. 2 para. 1 CopA are fulfilled – the unfinished or incomplete work or the part of a work must therefore be a human intellectual creation with an individual character.
2.1.4-4 A lecturer compiles a literature list for her students containing the author, title, edition, ISBN, etc. and a short description of each book devised by the publishing house. May the lecturer use this information without further ado?
It depends: all data is metadata, which is only protected by copyright when it is considered to be an intellectual creative effort with an individual character pursuant to Art. 2 para. 1 CopA. Information about the author, title, edition and ISBN does not fall under this. On the other hand, the short description is an intellectual creative effort and is therefore protected by copyright; the lecturer would have to obtain the consent of the publishing house to use it.
Although this work is used in an educational context, the lecturer can invoke the limiting provision specified in Art. 19 para. 1 (b) CopA and does not require any consent to do so (private use for educational purposes). However, it is important that the lecturer only uses excerpts from the short descriptions for the literature list (not a complete copy) Art. 19 para. 1 (b) in conjunction with Art. 19 para 3 (a) CopA).Alternatively, the lecturer can also just issue a link list with links to the choice of literature in question or to the homepage of the publishing house instead of a literature list. Then the lecturer does not require the consent of the publishing house
2.1.4-5 Is a table of contents of a legal commentary which simply follows the structure of the Copyright Act protected by copyright? What about a legal thesis following the author’s structure and arrangement of the content?
A table of contents only falls under copyright when it can be viewed as an intellectual creation with sufficient individuality pursuant to Art. 2 para. 1 CopA. As the structure of the Copyright Act is followed in the legal commentary, it lacks the required individuality; the table of contents is not sufficiently unique and creative.The situation is different for the table of contents of the thesis. In this case, the contents of the work are structured in a form which does not exist, so the table of contents is considered to be a creative effort of the author.
2.1.4-6 Is a draft of an essay considered to be a protected work?
Yes, as long as the draft is an intellectual creation with an individual character pursuant to Art. 2 para. 4 CopA.
2.2.1-1 What can be problematic in the case of the copyright protection of scientific works?
The scientific idea is not protected by copyright. This includes statements, discoveries and results from states, events, research and other facts. These have no creative content of their own.
2.2.1-2 May a university lecturer use the biographical information from a PhD student’s thesis on the life and work of a psychoanalyst for a presentation without citing the thesis? Can this be considered an infringement of copyright?
No, because biographical data is considered to be in the public domain as it was not creatively developed by the PhD student (for more information, see the decision of the Federal Supreme Court BGE 113 II 306).
2.2.1-3 Is a theory presented in a scientific work protected by copyright?
Yes and no: the theory is not protected by copyright in its semantic content. It is a scientific statement and must be freely available to science. If the theory is designed creatively and individually in linguistic terms, it is at least protected in this linguistic form. If the theory is used word-for-word by a third party, the exception of quotation must be observed pursuant to Art. 25 CopA; otherwise, the presumption of a work exists (plagiarism).
2.2.1-4 Is a teaching book or a textbook protected by copyright?
Basically yes, when the textbook or parts of it have creative and individual elements. The form of representation in particular can be protected, i.e. the structure of the textbook, the way the contents are put together, the form of linguistic communication (e.g. through images, tables, diagrams, etc.), the language itself (e.g. for laypeople without specialist vocabulary or humorous descriptions).However, the (teaching) methods or the knowledge about them which is transmitted by the book are not protected because parts of already known, tested and researched matter are summarised for the purpose of knowledge transfer.
2.2.1-5 Are mathematical formulas, regulations or algorithms protected by copyright?
No, only when the developed formulas, regulations or algorithms are only rewritten exactly. Then there is no space for any creativeness. However, if they are recorded in specially thought up plans, tables, images, text descriptions, etc., they can be protected works if they are sufficiently original and individual.
2.2.2-1 Are remixes (editing an existing music title, e.g. by changing the bass frequency, adding new melodies or instruments, etc.) on the basis of third-party musical works permitted by law? And is a remix itself also protected?
Yes, but only with the permission of the affected owners of rights. Depending on the case, these are the author or the publishing house that holds the rights to the work, the record company that holds the rights to the recording, the phonogram company, any co-composers, etc.
As a derivative work, the remix itself enjoys individual copyright protection pursuant to (Art. 3 CopA) if it is an intellectual creation with an individual character and is perceptible to the senses pursuant to Art. 2 para. 1 CopA.
2.2.2-2 Is sampling permitted without further ado (use of sound sequences from old (known) music titles for the production of new music titles)?
Basically, it actually requires the consent of the owner of rights of the original music title (composer, record and phonogram company, etc.). Sound sequences or melodies can also be copyright protected parts of musical compositions when they fulfil the conditions specified in Art. 2 para. 1 CopA (intellectual creations with an individual character and perceptible to the senses). This may regularly be the case during samplings because the used melodies or sound sequences from musical compositions are typically characteristic of the requisite piece, so that everyone recognises it in the sampling.
However: in a decision dated 31.5.2016 (Az. 1 BvR 1585/13), the German Federal Supreme Court permitted sampling without the specific consent of the author for reasons of constitutionally specified artistic freedom.
In the case of samples manufactured in Switzerland, the consent of the owner of rights should nevertheless be obtained as a precaution.
2.2.2-3 Can a mobile phone ring tone be protected by copyright?
Yes, mobile phone ring tones can enjoy copyright protection as they show sufficient individuality.
2.2.3-1 May the logo of a university be used on the Internet page of an in-house university project by university employees without any consent?
No, consent is required. The logo of a university is basically protected by copyright (and also by trademark law), so it cannot just be used without further ado. The university is the owner of rights for the logo and must therefore give its consent. However, many universities have their own regulations or guidelines which specify how the logos can be used, and by whom. For example, the University of Basel specifies that the university logo may only be used by units and employees of the University of Basel; however, people not connected to the university must obtain consent at the corresponding office of the university (”logos & templates” of the University of Basel). If employees of the University of Basel were involved in the above-mentioned case, they would be permitted to use this logo for their project page; the consent of the university is given as a result of the afore-mentioned regulation.
2.2.3-2 Is the cover of a book protected by copyright?
It depends whether the design of the cover can be seen as a copyright protected work; i.e. whether it is an intellectual creation with an individual character. You can usually affirm this in the case of illustrations, paintings, creative photos and designs (forms, colours, patterns) if they show the required individuality. Monochromatic and/or simply designed covers (i.e. textbooks or scientific literature) are more difficult to evaluate. Careful checks must be carried out here to determine whether the required individuality exists and if the cover nonetheless stands out from others in terms of its design and creativity. Even if the cover does not enjoy copyright protection from this time onwards, a logo or lettering of a publishing house depicted on it can potentially be protected.
In the case of book covers, it must also be kept in mind that illustrated symbols or logos or lettering can fall under trademark law.
2.2.4-1 Architecture students have been asked to design a three-dimensional model of a building. The lecturer gives them guidelines on the materials, the size and the individual features the building needs to have. Is the model a copyright protected work?
Basically, three-dimensional representations with scientific or technical content are protected pursuant to Art. 2 para. 2 (d) CopA. However, they must also be creative works with an individual character. When all criteria for the creation of the model are specified by the university lecturer, as in this case, then the personal creativity or the individuality of the students is questionable. Nevertheless, lower benchmarks must be set – even when there is limited creative leeway, small details which really stand out from the rest can give products sufficient individual character.
2.2.4-2 A research project develops a database with scientifically evaluated geographical data; it can be operated interactively by simulating different conditions and graphically displaying the results. Do aspects of copyright law have to be considered?
Here it is important to make a distinction – the individual pieces of geographical data are not protected, even if they fall under the work category “works with scientific content” (Art. 2 para. 2 (d) CopA) at first glance. During the compilation of the geographical data, the required individuality is actually missing because it is based on scientific findings.However, the database is protected as a collection pursuant to Art. 4 CopA. Due to its structure and its depiction with interactive elements, it is considered to be sufficiently creative and original.
2.2.7-1 Can a research project invoke public interest when publishing photographs of famous people and publish the photographs without the consent of the people depicted?
Only under certain conditions. Pursuant to the law, every publication of photographs of people is unlawful (Art. 28 SCC, Art. 13 FADP), except when one of the following three exceptions exists:
- the photographed person has given their consent to the image;
- there is a legal justification for the image, or
- there is an overriding private or public interest in the image. Public interest can only be determined by weighing up the interests at stake. In the process, the mutual interests are contrasted – on the one side, the interest of the photographed person in protecting their personality and their right to determine themselves when and where they are pictured, and on the other hand, the interest of the public in their person. These two interests must be weighed up against each other.
The weighing up of interests plays a big part in practice. In this case, it is necessary to ask how important the person is for the public. The more important the person is for the public, the less of a requirement there is to gain their consent. Here you can take note of the following:
- If they are extremely important people of contemporary history (i.e. people who work entirely in the public arena, e.g. the pope, the president of the USA, world-renowned artists and musicians, etc.), you are permitted to publish photographs of them without their consent.
- If they are public people (of contemporary history) who are only the focus of public attention for a limited time, their photographs may also be published during the period of their fame without consent.
- If they are “normal”, non-public people (e.g. the neighbour, an employee, a pedestrian, etc.), then their consent is always required
However, if in doubt, it is always advisable to obtain consent.
When publishing photographs, the copyright of the photographer must always also be considered.
2.2.7-2 May the university put photographs in which its students are recognisable on their homepage?
No, unless the students give their consent to this.
2.2.7-3 Can a participant in a public university event refuse to have their picture taken? Can this person request that photos taken of them are removed?
It depends on how “important” the person is to the public:
- Yes, if the person in question is a “normal”, non-public person (e.g. a student, employee, etc.). In this case, it is illegal to take pictures of the person without their consent. The person can defend themselves against being “photographed”, in particular by demanding the deletion or removal of the photos (e.g. from the university’s homepage) and by invoking the data protection law on photographing a person. Photographs in which a person can be recognised are one example of sensitive data on their person (Art. 3 FADP). Pursuant to the Federal Act on Data Protection, every dealing, in particular also the creation of data, is unlawful, unless there is consent, a higher private or public interest or a legal justification for it (Art. 13 FADP).
- Generally not, when the person is a public personality, at least for a limited time (e.g. rector, personality from business, politician). A person who works in the public arena must accept “being photographed” if it is in connection with their fame and the event.
2.2.7-4 Are portrait photographs copyright protected?
If a portrait photograph is an intellectual creation i.e. was taken by a person (and not in an automatic photo booth) and has an individual character, i.e. the photographer has not simply snapped the person in the portrait in any particular way but rather with sufficient creative means and leeway (choice of lens, filter, moment of shooting the image, etc.), it is considered to be a protected work. Simply said, you can ask whether another person in the same situation would have taken the same or a very similar picture. In this case, you would have to deny that it has copyright character.
In case of doubt, it is advisable to assume that the work in question is protected by copyright.
UPDATE 2020: As a result of the new Swiss Copyright Act, a photographic portrait has to be considered as a protected work just because it is an intellectual creation, that means, there was a human being that snapped the shot, even if that photograph doesn’t have individual character.
2.2.8-1 I have received a warning from a lawyer because I used a photograph on my homepage. What can I do?
Take the warning seriously. However, do not sign any declarations to cease without further explanation, or pay any contractual penalty or agree to a settlement. Check firstly whether the accusation of an infringement of copyright is even legitimate. In each case, it is a good idea to seek legal advice.
2.2.8-2 May I embed a third-party YouTube video in my own website or in a social network so that a “framing” link is placed (i.e. which not only results in a reference to the YouTube page but also causes the video to appear as a whole)?
The question has not yet been conclusively settled in Switzerland. Therefore, you first need to assume that a “third-party link” is unlawful without the consent of the author or the owner of rights. In the EU, on the other hand, this is permitted under particular conditions (ECJ, Judgement dated 21.10.2014, C-348/13). Here it is argued that a YouTube user (holder of the copyright) usually uploads their video to YouTube with the intention of making the film freely available to the public domain. When a third party then makes this YouTube film available on another website or in a social network, it can literally be viewed by a wider public. However, if and insofar as this work is freely available on YouTube, it must be assumed that the owner of the copyright has considered the likelihood of it being replayed for all Internet users as the public.
2.4-1 Is a revised new edition of a textbook a derivative work?
Yes, when the changes to the new edition can be considered new individual features.
2.4-2 Students develop a script from their lecture notes and want to publish this on the Internet. May they do so without further ado?
No, in this case, they should be careful. Although scientific results are not protected, refining the material, i.e. the manner in which the lecturer transmits knowledge in a lecture, can definitely fall under copyright protection when the work character is fulfilled in the process. If the lecture notes are then developed into a script in such a way that they adopt the structure and content of the lecture, such a script can therefore be seen as a derivative work. The lecturer’s consent is required to produce the script and to use it (publication on the Internet).
2.5-1 Are individual editions of newspapers or magazines considered to be collected works within the meaning of Art. 4 CopA?
Basically yes, because the selection of individual articles – independent of their copyright protection – enjoys such work quality. In the case of daily newspapers, however, it should be kept in mind that the structure of the newspaper is not protected (all daily newspapers are structured similarly in particular columns). However, the arrangement of articles and reports in particular columns is protected because here every daily newspaper has its own characteristics and originality.
2.5-2 Is a lecture timetable a protected collected work within the meaning of Art. 4 CopA?
Generally not: the selection of lectures is prescribed and the lecture timetables are designed to give a complete overview of the lectures taking place at a university or at another educational institution. Lecture timetables are usually structured in a similar manner. In this case, the required individuality is lacking.
2.5-3 Can a link collection on a website be a protected collected work within the meaning of Art. 4 CopA?
Yes, when the selection and the arrangement of the links follow specially thought-up individual criteria.
2.5-4 Is a telephone book a protected collected work within the meaning of Art. 4 CopA?
No, it lacks the required individual character. It is simply a collection of personal data which is organised in a standard alphabetic way and selects data in the usual manner, which therefore does not make it original.
2.5-5 An e-learning platform is constructed according to the ideas and structures invented by its developers. A lecturer would now like to use this structure for his teaching. May the lecturer do so without the consent of the platform developers?
Yes and no. The e-learning platform is a database and therefore a collected work pursuant to Art. 4 CopA. It is protected with regard to the selection and arrangement of the content (data) when this can be viewed as an intellectual creation with individual content. The self-conceived scheme according to which the platform is structured fulfils these conditions. The platform is therefore protected by copyright, so the author’s consent is needed.However, here the limiting provision pursuant to Art. 19 para. 1 (b) CopA must be considered, which specifies that no consent is required under particular conditions when the work is used for teaching purposes (private use for educational purposes).
2.6.3-1 Gottfried Keller died on 15 July 1890. How is the term of protection of his works calculated?
As Gottfried Keller’s date of death is known, his work is protected for up to 70 years after his death (Art. 29 Para. 2 CopA); this means his work was protected until 1960. As the term of protection does not take the exact day of the death of the author as its point of reference, but rather the effective date of 31 December of the year of their death (Art. 32 CopA), namely 31 December 1890 in the case of Gottfried Keller, his work was protected until 31 December 1960. Therefore, Keller’s work has been in the public domain since 1 January 1961.
2.6.4-1 When does the term of protection end on works which are transferred to someone (e.g. to the publisher)?
The copyright term of protection is only calculated on the basis of the date of death of the original author and not on that of the owner of rights to whom the copyright was transferred.
2.6.4-2 When does the term of protection of a newspaper end? When does the term of protection of an individual article in a newspaper end?
As it usually consists of several works (articles, images, etc.) which fulfil the conditions of a copyright-protected work based on the selection of the work contained therein or their special arrangement (Art. 2 Para. 1 in conjunction with Art. 4 Para. 1 CopA), a newspaper is an independently protected work (collective work Art. 4 CopA). The works contained in the newspaper are also protected irrespective of whether they in turn fulfil the requirements of Art. 2 Para. 1 CopA (Art. 4 Para. 1 CopA). Therefore, it is important to differentiate between the newspaper as a whole item and the articles and images contained therein when answering the question of the term of protection.
For the term of protection of the newspaper: The author of a collective work is mandatorily a natural person (original author Art. 6 CopA) who can certainly also transfer their rights to a publisher that usually has a legal personality. However, the term of protection of a work is principally calculated on the basis of the date of death of its original author (Art. 29 et seq. CopA). Therefore, the copyright protection of the newspaper expires 70 years after the death of the original editor. As the possible owner of rights of the newspaper, the publisher is certainly not left unprotected; it is protected by the Federal Act on Unfair Competition (UCA). Art. 5 UCA protects the newspaper publisher insofar as that the person who takes over or exploits the reproduction of a market-ready work results (= the newspaper) of another person without reasonable own expense acts unfairly and must reckon with sanctions (Art. 9 et seq. UCA).
For the protection of the individual article in the newspaper: In the case of individual articles in the newspaper, the term of protection is also measured on the basis of the date of death of the respective original author, – usually 70 years after their death (Art. 29 Para. 2 CopA) –, irrespective of whether they had transferred the rights in their work to the publisher, or not.
2.6.4-3 May a library copy and put a newspaper online which was published 50 years ago if the publisher has gone bankrupt?
Caution is advised here. The author principally has the exclusive right to put the work online and must give their consent. However, a newspaper can be digitised and put online without the author’s consent if the copyrights in the newspaper have expired. This is the case if the original author, the editor of the newspaper, has been dead for more than 70 years. It does not matter from a copyright perspective whether the publisher as a legal person has been assigned the copyrights by the author or has become the author’s legal successor through inheritance. Even if the newspaper has not appeared for more than 50 years, you may not know whether the editor has been deceased for more than 70 years. Therefore, you should advise the library not to copy the newspaper and put it online.
3.1-1 A student is working on their master’s thesis. Does the university automatically acquire the copyright in the master’s thesis?
No, the copyright can only originate with the student.
3.1-3 For a project, magazine articles should be digitised and indexed by applying the principles of computational linguistics (a software ‘reads’ the words in the articles to collect and analyse text data). Does this qualify as perception of a work?
No, perception of a work only means that a natural person (human being) is taking notice of a work (in this case reading a work), not a computer.
3.2-1 Who is the author of a children’s book if one person writes the text and another person creates the illustrations?
Both of them are joint authors. They are engaged in a joint creative task – in this case, the creation of a children’s book – and are jointly pursuing this objective.
3.2-2 A lecturer wants to prepare a PowerPoint presentation for his class, but does not know how it works. He writes the text on paper and asks an assistant to insert it into PowerPoint without any changes. Is the assistant a joint author of the text?
No, the lecturer is the only author. The assistant created the slides as directed by the lecturer and did not give any creative input of their own. The assistant is just the executing person.
3.2-3 A lecturer has not put anything to paper and asks his assistant to prepare PowerPoint slides for the lecture. The assistant prepares them, using their own ideas and structures, then the lecturer revises the slides. Who is the author of the work?
The lecturer and the assistant are joint authors. They have a joint task, i.e. to add the contents of the lecture to a PowerPoint presentation; both the lecturer and the assistant give creative input.
3.3-1 Must authors identify themselves as such on a work?
No, authors alone decide whether they wish to disclose their names or remain anonymous; they can also use a pseudonym.
3.3-2 The archive of a publishing house releases an illustrated book on street festivals whose author is unknown and cannot be determined, for publication. Can the publishing house claim the status of author because it edited or published the work?
No, the presumption embodied in Art. 8 para. 2 CopA only applies if the editor or party who published the work knew the author who wished to remain anonymous.
3.4-1 Can authors assign their right to decide whether, when, how and under what author’s designation their work is published for the first time (right of first publication) pursuant to Art. 9 para. 2 CopA to a publishing house?
No, the right of first publication is a moral right of the author and cannot be assigned. A publishing house may ‘help’ an author to publish a work, but in practice authors are required to assign their rights of reproduction and publication to the publishing house.
3.4-2 What must authors consider when assigning their copyrights?
Authors must decide beforehand (before they sign any contract regarding the assignment of rights) if they wish to give up any right(s) and assign their legal position to other persons or if they only wish to give/assign the permission to use the work for specific purposes under specific conditions (right of use).
3.4-3 What must users always consider?
Users must find out who the owner of rights is. The owner of rights can also be someone other than the original author. Users who wish to use a protected work must obtain the consent of the owner of rights, unless usage is covered by the limiting provisions. If the latter applies, the work can also be used without consent. Users must also be aware that the author might not have assigned all the rights. In this case, consent for the intended use of the work must be obtained not only from the owner of rights but possibly also from the author.
3.4-4 A library receives an archive of a painter from his heirs. The archive includes the painter’s works and those created by a friend. As the owner of the archive, can the library use all the works for an exhibition without any further ado?
No, for several reasons: the heirs still own the copyrights in the artist’s works as the copyrights were not assigned with the ownership acquired as a gift. If the library wants to use the works for an exhibition, it needs the consent of the heirs. The copyrights in the works of the artist’s friends were also not assigned to the library with the gift. To use these works, the library needs the consent of these authors (and/or other owners of rights, e.g. their heirs).
3.4.1-1 What should I do to assign my rights to third parties?
Authors who wish to assign all or part of their rights to third parties must sign a contract. The contract should set out the exact content and scope of the assignment of rights, because only the rights that were agreed are assigned. For reasons of clarity and proof, authors should always conclude a written contract (signed by both parties).
3.4.2-1 Does the Copyright Act contain any provisions on the publishing contract?
No, the publishing contract is governed by Art. 380 et seq. SCC.
3.4.2-2 What obligation must always be kept in mind when concluding a publishing contract and where can this be a problem in the academic sphere in particular?
The obligation to desist vis-à-vis a publisher, Art. 382 para. 1 SCO – as long as the editions to which the publisher is entitled have not yet been exhausted, the author may not publish the work elsewhere, in whole or in part, and distribute the work. This can be a problem if a publication should not only be published by a publishing house but also be made available through open access. The publishing house must then give its consent.
3.4.2-3 What must authors consider before signing a publishing contract?
With regard to the obligation to desist vis-à-vis a publisher, authors must consider the following aspects in particular:
1. Do I wish to assign my copyrights to the publishing house, and if yes, which rights and to what extent?
When copyrights are assigned, the publishing house becomes the owner of the rights and the author may no longer exercise these rights to the extent that they have been assigned (obligation to desist vis-à-vis a publisher).
2. Or do I prefer to give the publishing house only the right to use my work?
Here there will be an ‘intermingling’ of the aspects of the law on publishing contracts and the law on licence agreements. In this case, the author can continue to exercise their rights. However, an obligation to desist vis-à-vis the publisher can also be included in the contract. For example, the publishing house can request an exclusive licence so that it alone may use the rights.
3.4.3-1 May only the original author, e.g. the natural person who wrote the work, grant licences?
Often publishing houses or collective rights management organisations grant licences rather than the author. Third parties are also entitled to grant licences if they have been authorised to do so. To this end, the author must have assigned or granted them the necessary rights.
3.4.3-2 How are licences granted?
Licences are generally granted under a contractual agreement (licence agreement) between the licensor (author or an owner of rights) and the user (licensee). The contract determines the rights of use and their scope granted to the licensee by the licensor. Basically, the licensor grants the licensee a manufacturing or distribution licence and/or a licence for use. The usage options can also be restricted; for example, by number (e.g. only a limited number of performances), by time (e.g. a film may only be shown in a cinema for a limited period) or by area (cf. Hilty, Urheberrecht, 2011, 267 et seq.).
220.127.116.11-1 Can employees assign their right of first publication (Art. 9 para. 2 CopA) to their employer?
No, the right to decide whether, when, how and under what author’s designation a work is published for the first time (right of first publication) pursuant to Art. 9 para. 2 CopA is the moral right of the author and cannot be assigned. However, employees can allow the employer to exercise their right of first publication.
18.104.22.168-2 A law firm appoints a lawyer whose task is to regularly publish articles on current case law on its website. Does the firm own the (assignable) copyrights in these articles if the employment contract does not contain any specific provisions?
Yes and no. An agreement on the assignment of copyrights does not have to be explicit and be concluded in writing. The purpose for which the employee was appointed is important here – in this case, the lawyer was appointed to write Internet articles; the assignment of the copyrights to the law firm for the use of the articles on the website of this law firm is therefore tacitly agreed in the employment contract. However, the employee retains the other rights of use.
22.214.171.124-3 May a supervisor decide to change the title of an article written by an employee during the course of their work?
Not generally – only the original author (i.e. the employee) has the right to make alterations (the exclusive right to decide whether, when and how the work may be altered) pursuant to Art. 11 para. 1 (a) CopA. It depends whether this is a marginal and reasonable change (e.g. the supervisor corrects the spelling) – but if the supervisor simply changes the title of the article to a title they prefer, this act can be seen as an intrusion into the personality right of the employee, in which case it is not a marginal alteration.
126.96.36.199-1 May a lecturer publish lecture notes that they wrote during their working hours on their personal blog? The lecturer is subject to a cantonal law stating that all rights to the works created while executing their duties belong to the canton.
No, the copyrights (in this case, the right of reproduction and publication) are not owned only by the lecturer, but in accordance with the above legal provision, also by the canton. The lecturer must first obtain the consent of the canton, represented by their line managers.
188.8.131.52-2 During their free time, a history teacher wrote an article on the history of the school building in which they work. The school would like to publish this article on its website. Can it do this without the teacher’s consent?
No, the school does not have any copyrights in the article. Even if the teacher had assigned their copyrights to the school under the employment contract or the school’s regulations, the assignment does not apply to works that they create during their free time.
184.108.40.206-1 May a school exhibit art works made by its pupils (e.g. photos or stories) without any further ado?
No, the school does not have any copyrights in the works as the pupils did not assign the copyrights to the school. The school must obtain separate declarations of consent from the pupils or from their parents if the pupils are not of age.
220.127.116.11-2 Can a university publish on its website photos of its decorated building taken by students on the Academic Day? According to the university regulations, students must grant the rights in IP acquired as part of their studies to the university.
No, the university does not have any copyrights and thus also has no right to publish the work (reproduce it and make it available). According to its regulations, it would only have the right to do this if the students’ photos were taken ‘as part of their studies’. This is debatable in the current case. However, based on the purpose, it can be assumed that it only refers to works that are actually created as part of the students’ studies – if the photos taken on the Academic Day were coincidental and taken by chance as part of the students’ leisure activities, they have nothing to do with their studies. The university must obtain the students’ consent before it can publish the photos.
4.1-1 Is it possible to assign author’s moral rights to a third party?
No, because the moral right cannot be separated from the author, as it is only through the creative input of the author that a unique creative work is produced. This inseparability is precisely why the author’s moral right cannot be assigned to a third party.
4.1.1-1 In a study group, one student gives his essay to the other students and asks them to revise it. By doing so, has the student now published his work?
No, pursuant to Art. 9 para. 3 CopA a work is only considered to have been published when it is made available to a larger number of people outside the private circle of the author. The study group is a group of students that are closely connected to each other in their field of study. The student can still ‘control‘ this group of people. The essay has therefore not been made available to a larger number of people (Art. 19 para. 1 (a) CopA) and has thus not been published.
4.1.1-2 Has a work been published for the first time if a student posts her homework on Facebook?
This question can unfortunately not be answered with a clear ‘yes’ or ‘no’. According to current trends, one probably has to assume that it was published for the first time as the student makes her homework available to a larger group of people. Everybody should know by now that Facebook users have virtually no control over the sharing of their posts. Even if the student only makes her homework available to a private circle (e.g. a selected group of Facebook friends), there is no guarantee that the Facebook friends in question will not share the homework with other people who are not known to the student.
4.1.1-3 A PhD student publishes her PhD thesis through a publishing house (reproduction and distribution). Who exercised the right of first publication?
The doctoral student – only the author has the right to decide whether, when, how and under what author’s designation the work is published for the first time. She cannot assign the right of initial publication to the publishing house, as this is her non-assignable moral right. The publishing house ‘helps’ the doctoral student with the publication in that the doctoral student agrees in a contract with the publishing house to give her dissertation to the publishing house for reproduction and distribution.
4.1.2-1 When I quote from a work, do I always have to mention the author?
Yes. Where the source indicates the author’s designation, the author’s name must also be cited, Art. 25 para. 2 CopA. It should be noted that quotations are not only governed by copyright law; it is also good scientific practice to provide correct quotations.
4.1.3-1 An artistic photographic image should be digitised. Does this qualify as an alteration to the photo pursuant to Art. 11 para.1 (a) CopA?
No, straightforward digitisation is a simple technical conversion, not an alteration. However, this qualifies as reproduction pursuant to Art. 10 para. 2 (a) CopA, which may not be done without the consent of the author or the owner of the rights, except if one of the limiting provisions applies (e.g. digitisation for private use).
4.1.3-2 May I make alterations to a picture if the artist gave the picture to me and I am now the owner of the picture?
No, ownership does not change the fact that the artist remains the author of the work and has the exclusive right to make alterations to the work pursuant to Art. 11 para. 2 CopA. The situation would be different if the artist had expressly permitted me to make alterations.
4.1.3-3 Is there an exception in copyright law that allows owners who are not authors to make alterations to works protected by copyright?
Yes, for building structures, Art. 12 para. 3 CopA: Works of architecture that have been constructed may be altered by the owner. However, the authors can oppose any distortion of their work that infringes their personality.
4.1.3-4 Is there a distinction between the alteration and the adaptation of a work?
Yes, if a work is changed to the extent that it contains new creative contents, it is considered to be an adaption in the sense that it is derivative work (Art. 3 para. 1 CopA). However, if the work is edited without any creative quality, this is considered to be an alteration.
4.1.3-5 May a museum which purchased an original painting from an artist and digitised this painting for its collection, dispose of the original work because it is no longer needed after the digitisation?
No, the museum must offer to return the original work to the artist (Art. 15 para. 1 CopA). The museum may only dispose of the work after the artist has refused to take it back.
4.2-1 What is the difference between the author’s moral right and property right?
The property right comprises the right to use the work and can be assigned partially or in full to third parties. The moral right protects the author’s personal relationship to the work and cannot be assigned. Even if an author assigns the property right in full to a third party, the author retains the moral right and can claim the rights associated with this moral right.
4.2.1-1 Is downloading a text from the Internet always considered to be reproduction?
Yes, this is reproduction pursuant to Art. 10 para. 2 (a) CopA. Files are called up on the Internet and saved on the computer. A copy of the file (=reproduction) has therefore been made on the computer. Although such files are usually only copied temporarily, e.g. the data is copied to the computer’s memory during the download and deleted again when the user leaves the website, they can also be saved permanently so that they can be called up again later. In this regard, Art. 24a CopA governs the admissibility of temporary copies.
4.2.1-2 Is it a reproduction if a copy of the work was used as the template for the reproduction rather than the original?
Yes, the template does not necessarily have to be the original; a reproduction (copy) – even an unauthorised copy – can be used as the template (cf. Hilty, Urheberrecht, 2011, 133).
4.2.1-3 A work (e.g. a picture, sculpture, building structure, etc.) is photographed. Is this a reproduction?
Yes, a photo is a copy of the work.
4.2.1-4 Does it matter whether an analogue or a digital photo is made of a work?
No, in both cases, a copy of the work is recorded – for analogue photos by the negative (cf. Hilty, Urheberrecht, 2011, 134) and for digital photos by the fact that the photo file is saved.
4.2.1-5 What provision of the CopA should be kept in mind when works accessible to the public are photographed?
Art. 27 CopA – according to this provision, a work permanently situated in a place accessible to the public may be depicted; the depiction may be offered, sold, broadcast or otherwise distributed
4.2.2-1 Does Art. 10 para. 2 (b) CopA only apply to the distribution of originals?
No, the distribution of works applies to originals as well as copies (cf. Hilty, Urheberrecht, 2011, 135).
4.2.2-10 Who must be remunerated pursuant to Art. 13 para. 1 CopA?
The collective rights management organisations – Art. 13 para. 3 CopA. Only collective rights management organisations are entitled to assert claims for remuneration, not the authors.
4.2.2-11 Do libraries have to pay remuneration under Art. 13 para. 1 CopA, and if yes, to whom?
Pursuant to Art. 13 para. 1 CopA, libraries have to pay remuneration if they charge a lending fee. The term lending fee is defined in detail in para. 1.3. and 1.4. of Joint Tariff 6a, offering works for rent in libraries. This agreement was concluded between the collective rights management organisation ProLitteris and the libraries. If a library charges a fee for lending books to readers, it has to pay remuneration to ProLitteris pursuant to Art. 13 para. 1 CopA. The remuneration for books is 9% of the fee paid by the users (cf. para. 4.1 (c) JT 6a).
4.2.2-2 Does the principle of exhaustion pursuant to Art. 12 para. 1 CopA apply if a copy of a work produced without any authorisation (‘piracy’) is sold?
No, a work may only be freely resold or used in any other way if authors sell the work themselves or allow another person to sell the work. This does not apply here (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 12 N. 9).
4.2.2-3 A photo given by an author to a third party is marked with ‘not for further use. May this photo be sold to someone else by the third party?
Generally speaking, such a notice on a copy of a work is irrelevant because of the principle of exhaustion and the limiting provisions. This is different if the photo has not yet been published for the first time by the author and if the author gave the photo to the third party under the explicit condition that the photo may not be distributed further. The author has the exclusive right of first publication (Art. 9 para. 2 CopA); this is the author’s moral right and is not affected by the principle of exhaustion (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 12 N. 9a and 10).
4.2.2-4 May a legitimate buyer of a black-and-white photo convert this photo into a colour photo and justify this action with the principle of exhaustion?
No. Although the buyer became the owner of the photo, the conversion of the photo is an alteration pursuant to Art. 11 para. 2 CopA. Only the author may make alterations; it is the moral right of the author. This right is not affected by the principle of exhaustion.
4.2.2-5 Does the principle of exhaustion also apply if the author published their work for the first time abroad or for the foreign market?
Yes, international exhaustion applies. Pursuant to Swiss copyright law, the legitimate buyer of a copy of a work may then freely resell or otherwise distribute this copy (for more detail, cf. BGE 124 III 321 et seq.).
4.2.2-6 When is a book rented, and when is it lent to someone?
In both cases, a book is given to someone else for a certain period, and this natural person has to return the book after this period. If the book is rented, the person who rents the book must pay a fee for the use of the book. However, if someone only lends the book, no fee is payable.
4.2.2-7 Where in copyright law is this difference between renting and lending important?
With regard to the obligation to pay compensation for the rental of copies of literary and artistic works, Art. 13 para. 1 CopA.
4.2.2-8 Does Art. 13 para. 1 CopA (rental of copies of literary and artistic works) also apply to data made available on the Internet?
No, it only applies to physical objects. Only physical objects can be ‘made available for a fee’ pursuant to Art. 13 para. 1 CopA.
4.2.2-9 Are there exceptions to the right to rent pursuant to Art. 13 para. 1 CopA, i.e. rental without an obligation to remunerate the authors or collective rights management organisations?
Yes, these are governed by Art. 13 para. 2 CopA, according to which no remuneration has to be paid for:
- works of architecture;
- copies of works of applied art, and
- if the rental company and a user concluded a contract regarding the use of the copyrights (e.g. contract between the rental company and cinema regarding the rights to screen a film) and the tools for performing the contract also have to be rented out (in this case, the film reel) (example based on Müller/Oertli-Pfortmüller, URG, 2nd edition, 2012, Art. 13 N. 6).
4.2.3-1 Does the author of a video or a photo have the right to upload this video or photo to an Internet portal?
Yes, this is the author’s exclusive right; according to Art. 10 para. 2 (c) CopA authors may make their work perceptible and available in such a way that people may access it at any time and from any place. This can also be done by uploading files (in this case, the video or the photo). At the same time, this is also an act of reproduction pursuant to Art. 10 para. 2 (a) CopA, because the video or photo is usually also saved on a server. The author is also permitted to do this.
4.2.3-2 May a student upload a video or photo produced by a third party (author) to an Internet portal?
As it is the exclusive right of the author to make a work available online, the student needs the consent of the author to do this (Art. 10 para. 2 (c) CopA).
4.2.4-1 May a broadcasting organisation that wishes to include a third-party work (not produced by itself) in its programme simply broadcast this work without further ado?
No, only the author (or the natural person to whom the copyrights have been assigned) has the right pursuant to Art. 10 para. 2 (d) CopA to broadcast the work by radio, television or similar means, including by wire. The broadcasting organisation therefore needs to obtain the author’s consent.
4.2.4-3 May restaurants play radio music in the background without any further arrangements, or may a hotel show television programmes in its lobby?
No, this qualifies as making a radio or TV programme publicly perceptible pursuant to Art. 10 para. 2 (e) CopA. Pursuant to Art. 22 para. 1 CopA the restaurant or hotel owner has to contact a collective rights management organisation – for background music or television, this would be SUISA, while the permissibility of the broadcast and the compensation are governed by Joint Tariff 3a (please note: only valid until 31 December 2016).
5.1.1-1 What does ‘collective exploitation’ mean?
Collective exploitation exists when the exploitation is collectively undertaken by collecting societies rather than individually exploited by the author or the owner of rights. On the one hand, all authors and owners of rights are protected collectively, while, on the other hand, the remuneration is gathered collectively. An example of collective exploitation is exploitation for copying within the scope of private use (Art. 19 in conjunction with Art. 20 CopA substantiated by Joint Tariffs 8 and 9).
5.1.1-2 How can I, as the author, benefit from the remuneration which the users pay to the collecting societies as a result of collective exploitation?
As long as I, as the author of the work, am a member of the collecting society, I will receive percentual remuneration for the use of my work based on the distribution regulation of the collecting society.
5.10-1 Are collecting societies government bodies?
No, they are civil societies (cooperatives or associations) comprising composers, songwriters, writers, directors, producers, editors or claimants of related rights.
5.10.4-1 Why is the SSA not supervised by the Swiss Confederation when it grants licences to perform plays?
The SSA offers individual, centralised management, i.e. an area in which the SSA acts as an intermediary between authors and users. There are many rights holders who do this themselves without going through the SSA. This means the SSA does not have a monopoly and state intervention is therefore not justified.
5.10.5-1 Is the amount of royalties specified by the Common Tariff 7 for those using works for educational purposes negotiable?
Yes and no. The right to remuneration under Art. 19 para. 1 (b) and Art. 20 para 2 CopA can only be exercised by collecting societies with IPI authorisation. The management of the right to remuneration is subject to federal supervision. The amount of royalties is fixed by the Common Tariff 7, which is managed by ProLitteris. ProLitteris also represents other collecting societies. ProLitteris has to negotiate the Common Tariff 7 with umbrella teaching organisations and then submit it to the Federal Arbitration Commission for approval (Art. 46 para. 2 and 55 CopA). Once approved, the tariff is binding on the courts (Art. 59 para. 3 CopA). The tariff is therefore binding and schools can no longer dispute the amount of royalties it stipulates or secure different terms and conditions. By way of compensation, however, schools know they can obtain all rights from a single source with little fuss.
5.10.5-2 And what about the amount of royalties collected by SUISA for making music available on the Internet?
Management of the right to make music available on the Internet to be accessed on demand (Art. 10 para. 2 (c) in fine CopA) is not supervised by the Swiss Confederation. In this area, SUISA is subject to market and cartel law, which means it does not manage the rights to all works. The user, therefore, has to research beforehand whom to ask for the necessary licences. Assuming that SUISA is competent, the royalties are not fixed by binding tariffs but by simple civil licencing terms and conditions. SUISA collects fees based on these terms and conditions, although contractual freedom ultimately applies. The user and SUISA are free to reach an agreement on the amount of royalties which takes the specific circumstances of the case into account. This means there is more flexibility compared with areas that are subject to federal supervision. However, the process of acquiring rights will be more complicated.
5.11-1 Is it possible for a journalist to report an entire novel of a book, which is part of an exposition where different books are exposed, on his cultural blog?
Pursuant to art 28 CoPA to report current events, the works perceived in doing so may be fixed, reproduced, presented, broadcast, distributed or otherwise made perceptible. In this case, it is not clear if the book is presented itself or not. If it is not presented (e.g. reading an excerpt, or presenting the cover to the public), the book cannot be reproduced in the blog of the journalist. On the contrary, if the work is perceived somehow during the exposition, then art. 28 CoPA applies.
5.11-2 Is it possible to reproduce a work of art which will be object of an exhibition starting in three months on the cultural blog of a journalist?
In principle no. This is because the exception of art. 28 CoPA is valid only for current events, which means events that are in course or just finished. The situation could be different if there is something new about this future event, which makes it “current”, for instance the organization phase started: nonetheless, only works that are perceived at this phase can be reproduced under art. 28 CoPA.
5.11-3 I want to report on the official event (barbeque on the lake shore) organized two days ago by the University for its administrative staff, on my blog. Can I use some videos reporting on the event found on local information websites?
In principle yes, you are allowed to use the excerpts of some videos found on local information websites to report on the event organized by the University, under the condition that the event is still current and interesting for the public I reach with my blog. In this case, full reference must be made to the relevant excerpt as well as the source.
5.2.1-1 Do reading and looking at a work fall under private use?
No, from a legal perspective, this is considered to be perception of a work, which is not a copyright-relevant use in the case of published works. Reading and looking at published works are always permitted under copyright law.
5.2.1-2 Which areas are considered ‘personal areas’ in the case of private use in the personal sphere or in a private circle?
The personal area is considered to be privacy which is worthy of protection. The decisive factor is not the place of the action but rather the personal context. As soon as the action takes place in the public sphere, it no longer falls under the personal area.
- Example for the personal area: playing music at home, even with the window open and the possibility that other people may hear the music
- An example of an action that is no longer in the personal area: street music.
5.2.1-3 How close a relationship must I have with someone to be able to invoke private use in the personal sphere or in a private circle, and for this person to be regarded as closely connected to me?
The people must have a ‘close connection’ to me. Particular examples are family members, family-like communities such as shared accommodation, friends who have a close personal relationship (Art. 19 para. 1(a) CopA).
5.2.1-4 Do my ‘Facebook friends’ have such a close relationship to me that I can invoke private use in the personal sphere or in a private circle?
Generally speaking, no; such a close connection does not occur between ‘Facebook friends’. Legal doctrine (still) assumes that contacts which have been made on the Internet do not apply in this case. The close connection just arises in a small, strictly limited circle of people, which is not the case for Facebook friends.
5.2.1-5 Do my work colleagues or my fellow students belong to the ‘personal area’ within the meaning of private use in the personal sphere or in a private circle?
Generally speaking, no, because the ‘personal area’ also necessitates that there be a close personal relationship between the people concerned. This is not the case with work colleagues or fellow students. However, something else can result when particular work colleagues or fellow students have a closer relationship with each other than the usual employment or training relationship (e.g. a close friendship develops between two or three students, or two students move into shared accommodation together).
5.2.1-6 May I copy published works such as Harry Potter and the Chamber of Secrets which I borrowed from the library for my private use?
Yes, published works may be copied for strictly private use (private use in the personal sphere or in a private circle for oneself and for closely connected people such as friends and relatives). You do not require the author’s consent to do so. If the copies are made on a private photocopier, the complete works may also be copied.
5.2.1-7 May works from a private estate or similar non-public source be used?
No, generally not. Copyrighted works may only be used when they have been published. A work is considered to have been published when the author makes his work available to a larger number of people outside his personal circle and can no longer exercise any control over who can use his work in this sense.
5.2.1-8 May I copy complete textbooks for my fellow students?
No, complete copies are not permitted outside the scope of private use in the personal sphere or in a private circle (Art. 19 para. 3(a) CopA). ‘All fellow students’ goes beyond the scope of the private area, which consists of a circle of persons who are closely connected with one another.
5.2.1-9 What does complete or near to complete copying mean pursuant to Art. 19 para. 3(a) CopA, or what does incomplete copying mean?
The jurisdiction in Switzerland is not uniform in this regard. According to the Civil Court of Basel, incomplete is understood to mean a maximum of 75% of a commercially available work (Civil Court of Basel-Stadt dated 19.06.2002 in sic! 2003, 217) while the Appellationshof Bern understands this to mean a maximum of 90% of the work that is commercially available (Appellationshof Bern dated 21 May 2001 in sic! 2001, 613).⇒ Exceptions for private use:
- paintings, photos, graphics, sketches and other works of art may be completely copied (Joint Tariffs 8 and 9)
⇒ Exceptions for private use for educational purposes:
- radio and television programmes may be taped completely on a password-protected platform (Joint Tariff 7 Sect. 7.4).
(c.f. the Joint Tariffs for further general information).
5.2.2-1 There must be an ‘educational context or an educational use’ for someone to be able to invoke private use for educational purposes. When is this the case?
The law speaks of ‘educational purposes’, i.e. when a teacher would like to use a work for teaching purposes. However, ‘teaching’ does not refer to traditional school teaching in the classroom or in class groups. Instead, it includes every event in an educational context, in particular multi-class forms of teaching, project teaching, lectures, seminars, as well as completing tasks at home, (online) distance education, and using an online platform of the educational institution.However, an ‘educational context or educational use’ only exists when someone uses a work for these events to fulfil the teaching or learning purpose. And this ‘someone’ does not necessarily have to be a teacher. Pursuant to Joint Tariff JT 7, pupils, students, teachers, university lecturers, assistant lecturers – of all levels, in both public as well as private educational institutions – employees of schools and instructional institutions, assistant, scientific and non-scientific employees included, as well as the associated libraries belonging to the educational institutions fall under educational use.
5.2.2-10 May an archive collect newspaper articles on particular topics and make them available to users (in analogue and digital form)? And when does this use fall under Joint Tariff 7?
Yes, an archive may collect newspaper articles when it can either invoke private use for educational purposes or professional use.
The archive can refer to private use for educational purposes (Art. 19 para. 1(a) CopA) or JT 7 when it is a part of an educational institution. In this case, the archive can make the newspaper article collection available in analogue as well as in digital form to the members of the educational institution concerned. NB: the collection must be put online on a password-protected platform; it may not be made freely available on the Internet.
The archive can refer to professional use for internal information and documentation (Art. 19 para. 1(c) CopA). It can also make the collection available in analogue or digital form; however, only internally for its employees’ use.In both cases of private use, complete newspaper articles may be copied, unless a particular article has not appeared in a magazine and can only be purchased in single copies online. Then this individual article is considered to be a sales unit and may only be copied incompletely pursuant to Art. 19 para. 3(a).
5.2.2-11 May a university lecturer use parts of her research assistant’s still unpublished thesis for her lecture?
No, unless the employee consents to this use. Otherwise, only published works may be used for private use, Art. 19 para. 1 p. 1 CopA.
5.2.2-2 Does a film shown during a school camp one evening to entertain the pupils fall under ‘educational use’?
No, this does not serve an educational purpose.
5.2.2-3 If PhD students take part in a conference, is this considered to be ‘an educational context’?
No, although PhD students can also belong to the circle of people in an ‘educational context’, a public conference is not a related teaching event for which a work can be used.
5.2.2-4 Is a school library allowed to tape films on television and make these available for use in the library?
Pursuant to Joint Tariff 7 sect. 7.4., complete radio and television programmes may be saved and archived on an internal password-protected school platform and then made available to the employees of the educational institution within the scope of private use for educational purposes as long as radio or TV are the only sources, i.e., no CDs or DVDs with the corresponding programmes are commercially available (c.f. the information sheet ‘Net-based use of complete radio and TV programmes by schools’ for further information).
5.2.2-5 May the media library of a music school make complete copies of CDs and DVDs and lend them to its lecturers and students?
No, without the consent of the author or the owner of rights only incomplete copies of CDs and DVDs may be copied for private use for educational purposes (Art. 19 para. 1 (b) in conjunction with Art. 19 para. 3(a) CopA). Excerpts are therefore permitted.
The situation is different in the case of private use in the personal sphere or in a private circle; here, complete copying of CDs and DVDs is permitted (Art. 19 para. 1(a) in conjunction with Art. 19 para. 3(a) CopA).
- libraries and other institutions accessible to the public may copy works (also completely) to secure and preserve their collections if these copies are not made for financial gain (Art. 24 para. 1bis CopA).
5.2.2-6 Is a local library allowed to tape films on television and make these available for borrowing in the library?
No, as this is not covered by private use in the personal sphere or in a private circle, nor by private use for educational purposes, nor by professional use (Art. 19 para. 1(a, b and c) CopA).
5.2.2-7 May a professor make a collection of particular articles, e-books, etc. (digital reserve list) available to his students on his homepage?
Yes, as long as he limits the access to the digital reserve list to his students in the case of the use of third-party works (password) and takes the scope of the work into consideration, depending on the type of work. The professor may make his own works freely available as long as he has not given up the rights to them.
5.2.2-8 May a university lecturer commission the university library to make copies of teaching material for his classes?
Yes, as long as he himself falls under private use for educational purposes (Art. 19 para. 1(b) CopA); in this case, he may use a third party, a library, to make the copies for him (Art. 19 para. 1(b) in conjunction with Art. 19 para. 2 CopA). However, it means that the library may only copy excerpts from the teaching material.
5.2.2-9 May films taped for private use for educational purposes be shown at a school pupils’ party?
No, this is not covered by private use for educational purposes pursuant to Art. 19 para. 1(b) CopA, which means that taped films may only be used for teaching (c.f. Joint Tariff 7 in this regard).
5.2.3-1 How does professional use differ from private use in the personal sphere or in a private circle and private use for educational purposes?
With regard to the use of a work, while every use is permitted by private use in the personal sphere or in a private circle and by private use for educational purposes, only copying is permitted in the case of professional use (however, with the exception that in-house distribution is also permittedwith the exception that in-house distribution is also permitted).
5.2.3-2 Does a research group fall under professional use?
Yes, a research group can fall under professional use. It is decisive that the research institution is an institution within the meaning of Art. 19 para. 1(c) CopA. It is irrelevant whether it is a commercial business or a university, or another educational institution.
When the research group falls under professional use, the members may make copies (printed and digital) and distribute them to other members.
5.2.4-1 Is a library permitted to send a copy to a commercial company?
Yes, when this company and the intended purpose pursuant to Art. 19 para. 1(c) CopA fall under professional use.
5.2.4-2 May a library send copies abroad?
No, the sending of copies abroad is not covered by the Joint Tariffs. In individual cases, the consent of the owner of rights would be required.Special case: the sending of a copy of a licensed work (e.g. article from a scientific e-journal) can also be permitted pursuant to the licence agreement.
18.104.22.168-1 May historical sheet music be copied?
Musical scores which are no longer protected by copyright because the author has been dead for more than 70 years are considered to be in the public domain and may be used freely. However according to the information sheet of the collecting society SUISA, this cannot be permitted due to competition law. The decisive factor is the question whether the score to be copied is a market-ready product which is adopted as such without reasonable personal effort using a technical reproduction process. The products must therefore be able to be commercially exploited without further ado (c.f. BGE 131 III 384. p. 389).
22.214.171.124-2 May I, as a private person, download music or films from an Internet exchange market (peer-to-peer) for my private use?
Yes, the downloading of works from an Internet exchange market for private use in the personal sphere or in a private circle (Art. 19 para. 1(a) CopA) is permitted under Swiss copyright law as long as the works which are offered in the Internet exchange market have already been published. It would be illegal to download unpublished works as private use is only permitted for published works. From the perspective of the user, it is irrelevant whether they download works from a legal or an illegal source.
But it must be noted that the upload of works to an Internet exchange market is illegal because it is no longer covered by private use (Art. 19 CopA); however, an exception would be if the work is only used within the scope of private use in the personal sphere or in a private circle, i.e. among people who are closely connected to each other, such as relatives or friends. It is important to note that many file-sharing programs automatically download and upload parallel files.
5.3.2-1 May a library (‘owning library’) copy a book from its collection or a DVD from another library (‘borrowing library’) based on Art. 24 para. 1bis CopA so that it can include the book or the DVD in its collection to allow it to be borrowed?
No, the institution may only make archive and backup copies pursuant to Art. 24 para. 1bis CopA from its own collection.
- The borrowing library can request a copy of a book or a DVD from the owning library based on Art. 19 para. 1(c) in conjunction with Art. 19 para. 2 CopA for its in-house professional use; in the process; however, only excerpts from the book or the DVD may be copied (Art. 19 para. 3(c) CopA). A copy of the book may principally not be lent to the library users of the borrowing library.
- However, the borrowing library can also request an excerpt copy of a work from the owning library for an individual library user.
- When the book or the DVD, etc. is no longer commercially available (= exhaustible), these works can be copied completely for private use (private use in the personal sphere or for educational purposes or professional use) (Art. 19 para. 3(a) CopA)
5.3.2-2 May an archive or a backup copy be put online based on Art. 24 para. 1bis CopA?
No, the purpose of Art. 24 CopA is the preservation of a work rather than making it publicly available (Art. 10 para. 2(c) CopA). This is no longer covered by Art. 24 para. 1bis CopA. This requires the consent of the author or the owner of rights.
5.6-1 May a person cite excerpts of film, music and images?
Yes, even if they have been the subject of controversy in the literature to date, images and work excerpts are now recognised. However, in the process, it is important that you also disclose images, films and music as quotations, and correctly specify the source (Art. 25 CopA).
5.6-2 May I use a quotation in a work that has been put online? For example, an image or a music excerpt on my homepage?
Yes, pursuant to the law, it is irrelevant in which medium (book, pictorial, homepage, app, film,…) a quotation is used. However, it is decisive that the quotation has an explanatory, informational or illustrative function, is covered in the scope of the purpose of the quote, is disclosed as a quote, and the source is specified (Art. 25 para. 2 CopA).
5.6-3 May I just select an image from Google for a PowerPoint presentation and insert it into my presentation without any further ado?
If the image is a copyright-protected work (and that is generally the case), then it may only be used with the consent of the author and the owner of rights. However, the image can be entered into the presentation as a ‘pictorial quotation’. Then it has to serve an explanatory, informational or illustrative function, be covered in the scope of the purpose of the quote, be disclosed as a quote and the source specified (Art. 25 para. 2 CopA).
5.6-4 May I quote an unpublished work?
No, only published works may be quoted. However, in individual cases, the justification of the protection of legitimate interests may exist so that the quotation of unpublished works can also be justified. For example, public interest in a dispute with historical facts is ranked more highly than the interest of the author not to publish his work. (c.f. BVerfG, decision dated 17.12.1999 – 1 BvR 1611/99 in ZUM 2000, 316 in this regard).
5.6-5 May I cite an extract from a scientific article in which I am the co-author without citing exact sources in a new article?
No, if the source is not given, this is considered to be (auto-)plagiarism. In accordance with good scientific practice, you are not permitted to copy from yourself without disclosing that you have done so.
5.7-1 What is an orphan work pursuant to art. 22b CopA?
“Orphan” works are phonograms or audio-visual fixations which have already been published for the first time (Art. 9 para. 3 CopA), and whose author is unknown or not possible to contact. The work must be included in an archive of an institutional or broadcasting organization.
5.7-2 I found a picture on the Internet, which I would like to re-publish on my blog, but I do not see who is the author. Is it an orphan work that I can use according to art. 22b CopA?
No. Not every work without mention of the author is considered as an orphan work in the sense of the law. First of all, it must be a phonogram or audio-visual fixation. Secondly, this work must be included in an archive made accessible to the public by an institutional or broadcasting organization. Before reaching the conclusion that the author is not known or reachable, the user must have carried out some research and give prove of diligence in doing that. Moreover, before using it without the consent of the author, the user has to notify the existence of the orphan work to the collecting societies and in principle pay a compensation. In this case, a single picture found by a private person on the Internet, which is not part of a public institutional or broadcasting archive, is not considered as an orphan work, and cannot be freely used.
5.8-1 Is it possible to add subtitles to a video of a song and upload it on youtube in order to facilitate the perception of this work to deaf people?
No, it is not possible to do so. Art. 24c CopA allows to to make a modified copy of a protected work of art, in a form which is accessible to people with disabilities. Such copies of the work may only be produced and placed on the market for non-commercial purposes, and only for the use of people with disabilities. In this case the copy is made accessible to everyone on youtube. Sothis reproduction is not allowed.
5.8-2 An association involved in helping blind people, is making a translation in braille of the most recent novels on the market to sell it to other associations supporting the blinds. Is the association allowed to do so?
Yes, it is possible but only if the translated books are sold to other associations or institutions supporting blind people or directly to the disabled person. Of course, a book translated in braille is deemed useful only to people with disabilities. Therefore, it can be said that this commerce is admitted under art. 24c CopA. It is important that this commerce does not generate any profit but only covers the expenses.
5.8-3 Am I allowed to commercialize translations of books in braille without the consent of the copyright holder of the original book?
The translation in braille is a derivative work and in principle needs the consent of the author. Nevertheless, by virtue of the exception of art. 24c CopA, it is possible to create and also distribute derivative works in order to help disabled people to perceive the work. It is possible to do so, at the condition that no profit is generated from this business. All the revenues shall only cover the expenses. If I want to get a profit I must have the consent of the copyright holder (author or/and editor).
5.9-1 Am I allowed to make a picture of the recently built building LAC (Lugano Arte e Cultura) in Lugano, and produce some nice t-shirts with this picture in order to sell them at the local tourist shops?
Yes you can do that according to art. 27 CopA. The building is protected by copyright, however, as it is placed on public ground and accessible to the public, the exception of art. 27 CopA applies. Under this exception it is also allowed to use the reproduction of the work for commercial purposes.
5.9-2 Am I allowed to make a picture of the recently built building LAC (Lugano Arte e Cultura) in Lugano and produce some miniatures with a 3D printer in order to make some gifts to my foreign clients?
No, you cannot do that. According to art. 27 CoPA works should not be reproduced in 3D. Only graphical representations or animations in two dimensions are permitted.
5.9-3 Is it possible to take a picture of the sculpture of a famous artist living in New York, while it is transported from the truck to the exposition hall of a Museum in Lugano and publish the picture on my blog?
No, it is not admitted to do so. Art. 27 CopA applies only if the work of art is accessible to the public because of the will of the author. In this case the sculpture is on public ground temporarily because it is transported from a place to another, and not because of the will of the author. If the same sculpture was exposed on a public square in Lugano, visible to everybody, in accordance with the author, then the exception of art. 27 CopA would apply.
6.1.1-1 What is an action for declaratory judgement and when is it pursued?
An action for declaratory judgement aims to establish whether a right exists when an illegal act has been reported (e.g. the failure to respect a copyright).
When a rights holder suspects that their rights have been infringed, they can bring an action for declaratory judgement to secure the evidence needed to claim for damages.
6.1.1-2 What happens if no evidence is provided in an action for declaratory judgement?
If no evidence is given, a court will not be able to validate or refute a claim.
6.1.1-3 What do you need to demonstrate to bring an action for declaratory judgement?
There must be doubt regarding the legal situation between the parties which hinders the affected person in exercising their rights. If this is the case, a court ruling can clarify the situation. The aforementioned doubt must also be unreasonable for the affected person, and they must not be allowed to file an action for performance (Art. 62 CopA).
6.1.1-4 Who has the right to bring an action for declaratory judgement?
First and foremost, the author, other owners of the copyright (e.g. the editor or exclusive licence holder if the licence agreement does not exclude this) and anyone in general who can demonstrate an interest which merits protection by declaratory judgement. This may be a natural or legal person (e.g. a company).
6.1.1-5 When can an action for declaratory judgement be brought?
An action for declaratory judgement can be brought at any time. However, waiting can create arguments for the opposing party to use, who may consequently attempt to demonstrate tacit acceptance of the infringement in question.
6.1.1-6 What does “an action for declaratory judgement is subsidiary to other more specific actions” mean?
To say that an action for declaratory judgement is subsidiary to other more specific actions means that the victim of a copyright infringement may request the court to simply declare the infringement only if it cannot assert more specific claims against the person who has committed the infringement. For example, if an action for remedy of the infringement (Art. 62 Para. 1 (b) CopA) is brought, that interest takes priority over an action simply seeking a judgement to declare the existence of an infringement.
6.1.2-1 What can I do if an infringement of my rights is imminent but has not yet been committed?
Any person whose copyright is infringed or threatened may request the court to prohibit an imminent infringement (i.e. request the court to order that a certain conduct be stopped).
6.1.2-2 If I suspect that I may suffer a copyright infringement, when and under which circumstances can I bring it to court?
The risk of copyright infringement must be imminent, tangible (a mere abstract speculation is not sufficient) and current (it must exist up to the moment the judgement is issued).
The risk is also current if there are clear indications that a copyright infringement is imminent.
6.1.2-3 What should I do if my copyrights are violated?
Any person whose copyright is infringed or threatened has the right to remedy the existing infringement (Art. 62 Para. 1 (b) CopA). The claimant must provide evidence that an infringement is ongoing. In particular, he must provide documentary evidence or testimonies which prove that the infringement is ongoing.
6.1.2-4 What should I do if someone is using my photos on a website without my permission?
The rights holder must present evidence to the court that the infringement is ongoing (documents or testimonies) to remedy the existing infringement (Art. 62 Para. 1 (b) CopA). It is possible to request the court to order the opposing party to provide information if necessary (Art. 62 Para. 1 (c) CopA).
6.1.2-5 When may the owner of the rights request the defendant to provide information?
A request for information (Art. 62 para. 1 (c) CopA) can be made whenever it becomes necessary for the claimant’s defence to establish the infringement of his rights or the scope of the infringement, or in order to calculate the damage caused.
6.1.4-1 Who may take legal action for declaratory judgement, for performance and for forfeiture?
Any natural or legal owner of the copyrights in question. Therefore, this may be the author but also any third-party assignees of the copyright, in particular collective rights assignment organisations which have been granted certain rights.
6.1.4-10 Can I request compensation if a third party infringes my copyright?
The person asking the court to remedy the infringement of their copyright (Art. 62 Para. 1 (b) CopA) can request that compensation be awarded for all the damages they have suffered as a result of the violation (Art. 41 et. seq. SCO).
6.1.4-2 When the rights have been assigned to a third person, is this person allowed to exercise more rights than those he has been assigned?
The copyright owner cannot exercise any rights other than those granted by the author. For example, if the author grants an editor the copyright to a document on a non-exclusive basis for the sole purpose of publishing the work as an article in a printed magazine, that editor cannot take legal action for a copyright infringement if the author then decides to grant the rights to publish the same article to an online magazine.
6.1.4-3 If there are several joint authors, who is allowed to take legal action?
If the copyright belongs to more than one person, each joint author may take legal action independently for infringements but may only ask for relief if it benefits all the other joint authors (Art. 7 Para. 3 CopA).
6.1.4-4 Against whom is an action for copyright infringement brought?
The action is brought against anyone who participated in the infringement, i.e. the main person(s) responsible for the illegal act and any instigators and accomplices.
6.1.4-5 Who is considered to be the “instigator” and what role do they play in the copyright infringement?
The instigator is the person who asks for the creation of the work or places the work on the market, which infringes the copyright. For example, this might be a professor who asks the university webmaster to publish an entire, scanned book on a website to share it with all the visitors to the site.
6.1.4-6 Who is considered to be the “accomplice” and what role do they play in the copyright infringement?
The accomplice is the person who performs and responds to the instigator’s request. The accomplice here, for example, would be the university webmaster who publishes an entire book scanned by the professor on the university website at the latter’s request.
6.1.4-7 How should I formulate my request if I decide to bring an action against a third party?
The request to the court must be as precise as possible with regard to the situation described and the conclusions drawn (cf. BGE 97 II 92). For example, it can request the court to prohibit or remedy an illegal act or force the defendant to respect the authorship of a work.
6.1.4-8 What do I need to request the judge to ensure that the court order is properly implemented as soon as possible?
In order to ensure that the court order is properly implemented as soon as possible, the best course of action is to request that a threat of enforcement is issued with the verdict based on Art. 292 SCC, which stipulates that a criminal penalty may be enforced if an official order is disobeyed. If the court finds that the manufacture of the goods infringed the copyright, it can order their forfeiture and sale or destruction.
6.1.4-9 What kinds of civil sanctions exist for a copyright infringement?
In addition to actions for prohibition (Art. 62 Para. 1 (a) CopA), remedying an existing infringement (Art. 62 Para. 1 (b) CopA) and for providing information (Art. 62 Para. 1 (c) CopA), which aim to limit/remedy the infringement, the following actions also aim to compensate the injured party for the damages suffered: action for damages (Art. 41 SCO), satisfaction (Art. 49 SCO) and handing over of profits (Art. 62 Para. 2 CopA).
6.2.1-1 Is a person liable when they disseminate DVDs of a new film before the film has been released or while it is being played in cinemas for the first time?
Yes, disseminating (renting out) DVDs before a new film has been released or while it is being played in cinemas for the first time is not admissible (infringement of Art. 12 Para. 1bis CopA). This constitutes unlawful and culpable conduct. The damage suffered due to loss of revenue was caused by “natural and adequate causality” resulting from the sale or rental of the DVDs, which was in itself a breach of Art.12 1bis CopA (cf. BGE 4a_142/2007 dated 26.9.2007).
6.2.1-2 When can I request compensation?
The claimant must fulfil the conditions required by Art. 41 SCO. In particular, they must prove the existence of the damage caused by unlawful and culpable conduct, and there must be causal connection between said damage and culpable conduct.
6.2.1-3 What conduct is considered to be illegal in connection with copyright use?
Any act which infringes the exclusive rights of the copyright owner is illegal if it has not been authorised or is not a limiting provision to copyright. Therefore, this infringement must be caused with culpability, which is expressed in negligent or wilful conduct.
6.3-1 Why are there preliminary measures in civil law?
Preliminary measures in civil law (Art. 65 CopA) will provide the claimant with interim protection in a legal action until a final decision is made. The law has set out preliminary measures which can be requested before the main court proceedings to establish an infringement and evaluate its extent (expert inspection, request for information, etc.) or remedy an infringement, thus limiting the damage suffered (seizure of counterfeit copies, manufacturing materials).
6.3-2 What can be the subject of a preliminary request?
The subject of a preliminary request can be:
- the seizure of copies of the work in question;
- an expert inspection;
- the request to draw up an inventory;
- the collection of information to establish the origin, quantity and recipients of the disputed goods;
- the prohibition of the use, manufacture and interference in the trading of pirated works;
- the seizure of counterfeit copies and any materials used to produce them.
6.3-3 Does the opposing party always have to be heard during the proceedings for granting preliminary measures?
The preliminary measures must be subject to a prior hearing with the opposing party. However, in cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party.
6.3-4 What evidence is required by law to prove a copyright infringement?
There is a distinction between court proceedings and summary proceedings, especially when it comes to preliminary measures. In court proceedings, the claimant must provide conclusive evidence of their rights. With preliminary measures in summary proceedings, the claimant only needs to show that their rights are plausible. In both cases, a statement from the alleged injured party alone is never sufficient.
Evidence in summary proceedings is usually provided in the form of physical records.
In these proceedings in particular, other forms of evidence are admissible as long as the taking of evidence does not substantially delay the proceedings.
6.3-5 How can I show that the facts and consequences I am claiming are plausible?
The claimant must show that the facts and consequences they are claiming are plausible by providing the court with documentary evidence. Spontaneous written testimonies or expert reports can prove useful for showing the claims to be plausible but they must be verified at a later date.
6.3-6 What is the time limit for requesting a preliminary measure?
The claimant must act as soon as possible. If the claimant delays, he risks being suspected of having committed an abuse of rights at a later date.
6.3-7 What are the time limits for filing a request with the court?
If the principal action is not yet pending, the court shall set a deadline within which the applicant must file his action, under penalty to the ordered measure. This is not required if the summary proceedings only aim to request a precautionary taking of evidence.
6.4-1 What are the conclusions of a judgement?
The conclusions of a judgement are the final part of a judgement and, as such, contain the decision of the court without the legal grounds or considerations, which are generally pronounced earlier. In particular, the conclusions stipulate whether the court has approved or denied the action or whether the court has decided to declare the action settled for other reasons. It stipulates further the cost burden and explains which modes of appeal the parties have at their disposal.
6.4-2 Who decides whether the judgement is published or not?
The court may order, at the request of the successful party, that the judgement be published at the expense of the opposing party. The court determines the form and extent of the publication. This right can be granted in whole or in part to the successful party, which may be either the claimant or the defendant.
6.4-3 Are the publication costs automatically granted to the successful party?
No, the payment of the publication costs must be specifically requested as the court will not do this ex officio.
The court determines the extent of the publication, paying particular attention to the principle of proportionality. The losing party may be required to pay the publication costs as part of the compensation owed to the opposing party. In any case, the claimant must anticipate this.
6.4-4 In which form and to which extent may a judgement be published?
The publication of the judgement can be requested in all media formats or with the publication of the work itself as additional information. The publication usually only contains the judgement and the conclusions in particular.
In view of the negative impact on the offender’s reputation when the decision is published, publication must be restricted to what is ordered in the judgement.
6.5.1-1 Which legal consequences could you face if you make a film black and white in order to disseminate it without the consent of the rights holder?
A user cannot make a film black and white without the consent of the rights holder. That would be an infringement of the exclusive rights of the author (Art. 11 Para 1 CopA, Art. 10 Para. 1 (d) CopA). This act would lead to the risk of being taken to court for breaching Art. 67 Para. 1 (c) CopA, which carries a custodial sentence not exceeding one year or a monetary penalty.
This may also overlap with civil actions (e.g. an action for damages).
6.5.1-10 What is the punishment for an offender who acts for commercial gain?
If the offender commits the infringement for commercial gain, they will be prosecuted ex officio (Art. 67 Para. 2, Art. 69 Para. 2 and Art. 69a Para. 2 CopA). The penalty is a custodial sentence not exceeding one year or a monetary penalty. Acts are only punishable if they were committed by a person who knew or, given the circumstances, should have known that they were committing, enabling, facilitating or concealing an infringement of copyright or a related right.
6.5.1-11 What could I do if I have committed a copyright infringement?
It is in the offender’s interests to try to come to an agreement under civil law with the injured party so that the latter withdraws, or does not file a complaint against them. The objective is for the injured party, in exchange for monetary compensation, to agree not to commence criminal or civil proceedings or agree to withdraw its complaint if need be.
6.5.1-12 When is a person acting for commercial gain?
A person acts for commercial gain depending on “the time and resources he dedicates to the criminal actions, the frequency of the acts within a given period of time, his anticipated or actual income and whether he committed the illegal activity as his profession, however incidental; the offender must have aimed to receive a relatively regular income, which represents a significant contribution to the financing of his way of life and has consequently become involved in crime to some extent. The offender must hope to gain a relatively regular income, which allows him to make significant contributions to the financing of his lifestyle and personal needs” (cf. BGE 129 Para. 4 253 – in French).
6.5.1-13 When is a case involving copyright prosecuted ex officio?
The criminal offences mentioned in Art. 67 Para. 1 CopA are prosecuted ex officio if they were committed for commercial gain (Art. 67 Para 2 CopA), i.e. as soon as the prosecuting authority becomes aware of the offence and without waiting for the injured party to file a complaint. If the offender acted for commercial gain, their situation is effectively more serious, which justifies automatic prosecution.
6.5.1-2 What is the punishment for committing a copyright infringement?
Copyright infringements under Art. 67 CopA can be subject to a custodial sentence not exceeding one year or a monetary penalty (payment of a fine).
6.5.1-3 In which case can we say that a copyright infringement has taken place?
A copyright infringement has been committed when someone who does not have authorisation from the rights holder and/or is not acting under a limiting provision:
- uses a work under a false designation or a designation that differs from that decided by the author;
- publishes a work;
- modifies a work;
- uses a work to create a derivative work;
- produces copies of a work in any manner;
- offers, transfers or otherwise distributes copies of a work;
- recites, performs or presents a work or makes a work perceptible somewhere else either directly or with the help of any kind of medium;
- makes a work available through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them;
- broadcasts a work by radio, television or similar means, including by wire, or retransmits a broadcast work by means of technical equipment, the operator of which is not the original broadcasting organisation;
- makes a work made available, a broadcast work or a retransmitted work, perceptible;
- refuses to notify the authority concerned of the origin and quantity of goods in their possession that have been unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial consumers;
- rents out a computer program.
6.5.1-4 What is wilful conduct?
It refers to the conduct of a person who has committed a copyright infringement whereby their intent to cause harm, whether directly or indirectly, is assumed. Direct intent describes the situation where the offender knows the consequences of their act will occur, and dolus eventualis refers to when the offender foresees the consequences of their act and commits it regardless, thereby accepting the possibility of those consequences occurring.
6.5.1-5 What requires a criminal prosecution of copyright infringements?
Actions against criminal offences are only ever brought following the complaint of the person whose rights have been infringed, which means if the injured party does not act, the infringement will not be prosecuted. The complainant also has the right to withdraw their complaint at a later stage, thereby terminating the criminal proceedings.
6.5.1-6 What is the time limit for filing a complaint?
The right to file a complaint is subject to a time limit of three months (Art. 31 SCC) beginning from the date the owner of the rights became aware of the infringement. If the alleged offender cannot be identified, the claimant can file a complaint against an anonymous party in order to adhere to the time limit. The injured party must therefore act promptly as soon as they become aware of the circumstances surrounding the infringement against them.
6.5.1-7 Whom must I lodge a complaint against?
If the infringement was committed by more than one person, the complaint can be filed against each individual. However, if the claimant brings a complaint against one single person, all other participants in the offence are included in this and they can be prosecuted.
6.5.1-8 Can I withdraw a complaint?
Yes, the owner of the rights can withdraw their complaint as long as the cantonal court of second instance has not issued its judgement (Art. 33 SCC). It is important to remember that, if the claimant withdraws a complaint against one of the defendants at a later stage, it will apply to all of the others. The withdrawal of a complaint is final and the complaint cannot be refiled.
6.5.1-9 When is the use of a copyrighted work illegal?
The use of a protected work is illegal if the user is not the author of the work or an assignee of the copyright or if the use is not allowed by a limiting provision of the copyright or they do not have permission from the owner of the rights.
6.5.2-1 If I fail to indicate a source I have used, can I be punished?
Any person who intentionally omits to indicate the source used where required by statute and where the author is named therein, and to provide the name of the source is liable to a fine on the complaint of the person whose rights have been infringed (Art. 68 CopA). Failure to indicate the source is punishable only following a complaint and is not considered to be a serious enough contravention to be entered on the offender’s criminal record.
In addition, failure to indicate a source at an academic level or in research is considered to be unethical (violation of good scientific practice) and may lead to disciplinary action.
6.5.3-1 Can a work used to commit a copyright infringement be confiscated?
The Swiss Criminal Code stipulates that the court can order the forfeiture of objects that have been used or were intended to be used for the commission of an offence or that have been produced as a result of the commission of an offence, unless the assets are passed on to the person harmed for the purpose of restoring the prior lawful position. The law allows the forfeiture of counterfeit copies of the work as well as the material used to produce them.
6.5.3-2 Who can order the forfeiture of material used to commit an infringement, and when?
Forfeiture can only be ordered by a court at the end of proceedings.
However, in urgent cases, the criminal court magistrate or the police can order the sequestration of goods under the conditions given during the proceedings, or as soon as they begin.
126.96.36.199-1: I found a work on the Internet and I want to publish it on Facebook. I have the permission of the editor but do I have to mention the name of the author? What if the site where I found the work does not mention the author?
There is no specific legal framework for social media. This means the author retains their right of paternity of the work and you have to mention the author when they have chosen not to remain anonymous. If the work is referenced via a quotation, you need to do some research to make sure you have quoted the source correctly, in particular when good scientific practice needs to be respected.
188.8.131.52-1: I have created a work of fan fiction which replicates the world and codes of my favourite artist. Can I publish it on social networks?
Fan fiction is generally classed as a derivative work. Even though derivative works themselves are protected in their own right, the author of the pre-existing work retains their rights and can therefore challenge the publication of a derivative work. It is therefore necessary to get permission regarding the pre-existing work before publishing fan fiction on social networks.
184.108.40.206-2: I am retouching a photo that I found on Flickr. To what extent can I publish the results?
The author has the exclusive right to allow or forbid the modification of their work, whether or not this change is substantial or appropriate. This means you need the author’s permission, even if you think you have only changed minor details which make the photo look better.
However, a large number of Flickr users have chosen to place their works under the protection of Creative Commons licences. The “ND” (NoDerivs) attribution means that modification of the work is not authorised. If the author has not listed their work under this attribution, the licence allows users to publish retouched versions of the photo.
220.127.116.11-1: Someone has published the first few chapters of a book I am writing on social networks without my knowledge. Is my work deemed to have been disclosed?
In accordance with Art. 9 para. 3 CopA, the author must be the one to disclose their work. This provision is violated if parts of a work are published without the author’s knowledge and these parts have an individual character (Art. 2 para. 5 CopA). Beyond this violation, the work is not deemed to have been disclosed if it was done without your consent.
18.104.22.168-2: I sent the article that I am currently writing to some of my friends on Facebook. Have I disclosed my work?
A work is deemed to have been disclosed when the author loses control of the group of people who have access to their work. A work which has been published by the author on their home page without any restriction regarding access to the work can be considered to have been disclosed. However, if the friends constitute a select group, this is not considered to be the same as disclosing your work because the work remains within a group of closely connected people. Therefore, anyone subsequently disclosing the work will require the author’s permission.
22.214.171.124-3: A friend of mine, who is an amateur photographer, has sent me some photos. He is talented but shy, so I would like to publish the photos on social networks to give him a bit of a boost.
Publishing a work when the author has not given their permission is a violation of their right of disclosure. This is punishable under Art. 67 CopA. The author’s property rights would also be breached.
126.96.36.199-1: I am making a digital copy of a work so I can make it available to my friends on WhatsApp. Does this count as a reproduction?
Yes, the existence of a reproduction is not determined by the carrier it is stored on. A copy of the work will be saved in the memory of the computer and on WhatsApp’s remote servers. These two copies are considered to be reproductions. You have to assess whether you need to ask for permission or if there is an exception to copyright.
188.8.131.52-1: Can I publish a colleague’s article on Wikipedia since the licences are “free”?
No, the authors of the works contributed to Wikipedia decide to place their works under a CC-BY-SA licence, which allows users to share and modify the works provided they cite their source and place the results under the same licence. Just because you have a copy of the work does not permit you to bypass the exclusive rights of its author.
184.108.40.206-2: I want to create a WhatsApp group for my students to make it easier to share documents. Does this constitute making something available?
Yes, by sending your students a work via WhatsApp, you are making the work perceptible to them and that constitutes making something available. When the work is copied to the device of the recipient, this constitutes reproduction. However, this will be authorised on the basis of it being private use. The exception relating to use for educational purposes may also apply and therefore permit things to be made available.
220.127.116.11-3: One of my favourite authors has published a work on the Internet which anyone can access. Can I repost it on my Facebook page or do I need to ask for their permission?
A simple link to the site where the work is hosted is legal as this does not constitute making something available. Putting a copy of a work online on a social network, however, does constitute making something available and is therefore protected by copyright.
18.104.22.168-4: I want to retweet some content, is that making something available?
Everything depends on the content in question. Some tweets cannot be considered to be works within the meaning of the CopA. It is actually difficult to establish the individual character of a piece of content in a tweet which is limited to 140 characters. However, you still need to be careful. Many tweets and parts of tweets can be deemed to be works, especially when they contain files such as GIFs, photos or videos. Tweeting these counts as making something available.