Memory protection – protection of privacy for works in the public domain

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Under Swiss law, the personality right is lost with the death of the person in question; as an exception to this, the moral right of the author is lost 70 years (50 years in the case of computer programs) after their death. How does this now apply to a photograph of a deceased person when this photograph is in the public domain due to the copyright expiring because the photographer has been dead for more than 70 years? As the photograph is in the public domain, it can principally be used freely. No consent is needed and as the moral right of the author is also lost after death of the author, the photograph can, if it is still unpublished, for example (Art. 9 Para 2 CopA), be published or altered (Art. 11 Para. 1 (a) CopA). However, this does not apply without restriction, as the law also recognises a certain degree of protection for the relatives of the deceased stemming from their respective personality right even if the personality right of both the photographer and the photographed person have expired. This has specifically to do with protecting the memory of the deceased. In this way, a relative of the deceased person depicted in the photo can be illegally infringed if the image of the deceased is defamed. In the context of the copyrights in such a photograph, the photograph may have entered the public domain but it cannot yet be freely used due to the memory protection of the relatives. This is because the relatives can, based on their own personality right, defend themselves, particularly if their memory of the deceased person is infringed by derogatory use of the work. (BGE 109 II 353, 359)