Copyright law of Switzerland
The
Copyrights in Swiss law last for 70 years after the death of the author (50 years after the death of the author for computer programs). All "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character"
Certain documents are specifically excluded from benefiting from copyright protection in Switzerland; they are mostly official documents, such as laws or ordinances, or pieces of currency, but patents or patent applications are also excluded from protection. These exceptions are covered in detail below.
History
Although first theoretic publications about copyright in Switzerland date back to 1738,, a copyright law entered in force in 1847.
The first constitution of Switzerland of 1848 left copyright issues to the cantons;
Two years later, Switzerland was a founding member of the
In 1922 this first federal copyright law was replaced. The new law was passed by parliament on 7 December 1922 and entered in force on 1 July 1923. It clarified what exactly "works of literature and of the arts" were (Art. 1), and extended copyright to include photographic works and collections. The copyright term remained 30 years; pre-existing works that we not covered by the earlier law(s) were now also copyrighted (art. 62). Works that became known to the public only after the death of the author were copyrighted until the shorter of 50 years after the death of the author or 30 years since they became known. In the case of anonymous works, the editor or publisher acquired the copyright (Art. 8). The law covered works of the literature and the arts, including scientific works, maps, and photographs.[13]
In 1955, a revision of the 1922 law extended the copyright term from 30 to 50 years. This extension was not retroactive and applied only to works that were still copyrighted in 1955 (art. 66bis).[14]
Already three years later, work on an omnibus revision of the law was begun, but it took more than 30 years to complete this project until in 1992 a new copyright law was passed. It entered in force on 1 July 1993 and extended the copyright term again non-retroactively to 70 years.[15]
In 2004, another revision of the Swiss copyright law was begun with the goal of making the law compliant with the
In 2019, another revision to Swiss copyright law was approved by the
Duration of protection
Copyright protection for most protected works expires 70 years after the death of the author under Swiss law, the only exception being computer programs, which are protected for 50 years after the death of the author.[22] The protection also expires if the death must be assumed.[23] The date of death of the last author is relevant in cases of co-authorship, unless the contributions are separable.[24] The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died.[25] Works of unknown authors enter the public domain 70 years after the date of publication (even if the author is identified once the protection has ended).[26]
Swiss law also protects performers' rights; the duration of protection is 50 years, starting from the end of the year when the work was performed.[27]
As a result of the non-retroactive revision of 1992, when the 50-year copyright term was extended to 70 years, works that were already in the public domain in 1993, when the new law started being applied, do not benefit from renewed protection; therefore, all works made by authors deceased in 1942 or before are in the public domain in Switzerland.[15]
Official documents
The following are ineligible for copyright by law:[28]
- laws, decrees, international treaties or other official acts
- decisions, protocols or reports by public authorities
- pieces of currency
- patents or patent applications
It follows that photographs taken from or of these documents are also in the public domain. However:
- a photograph of an official document may constitute a protected work of its own if the photograph is sufficiently original (see below);
- a photograph taken from an official document may have been copyrighted by someone other than the state and been reproduced with permission in the official document.
Lack of originality
Only "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character",[3] are protected by copyright. What exactly individuality (also referred to as originality) means for photographs has long been a focus of dispute. Up until 2020, it meant that many photographs lacked copyright protection.
In its 2003 Marley decision, the Federal Supreme Court found that the picture at issue (shot by a spectator with a handheld camera) had the required individual character by virtue of the aesthetic appeal of the picture, combined with the orientation of the picture's components and the distribution of light and shadow. It also found that it was a "creation of the mind" by being shot at a specific time during the singer's movement on the stage.[29] Accordingly, the Court held that the picture was protected by copyright.
In its 2004 Meili decision, the Court found that the picture at issue, shot by a reporter to document Christoph Meili with the files he had taken from his employer, lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use.[30] For lack of an individual expression of thought,[31] therefore, the Court held that the image was not copyrighted.
Legal scholarship has attempted to summarise the Federal Supreme Court's jurisprudence on the threshold of originality as follows:[32]
- Images where only the object, but not the photograph, is individual are not protected, as e.g. in art catalogue photographs. Of course, the copyright status of the object depicted, e.g. a painting, must be considered independently.
- "Merely" illustrative and portrait images also tend not to be protected, at least if the composition, post-processing etc. show no individual expression of thought.
- Images are not protected per se because their object is famous or they attract great attention (e.g. the Kennedy assassination). On the other hand, an image can be a "snapshot" and still be protected as an individual work.
- The impression is given that the mere aesthetic appeal of a photograph may contribute to its originality.
As of the Copyright Act adopted on 1 April 2020, works that are "photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography" are now eligible for copyright, even if they do not display an individual character.[20][21] However, such works receive a shorter copyright term lasting only for 50 years after production of the photograph (Art. 29 par. 2 abis) and not for the regular copyright term of 70 years after the death of the creator.[1]
See also
- Bridgeman Art Library v. Corel Corp. for the equivalent leading case in U.S. law.
- International copyright
- Federal Patent Court of Switzerland
Notes and references
Authorities
- Bloch: Neue Schauspiel AG gegen Felix Bloch Erben, decision of the Swiss Federal Supreme Court of 13 January 1998; BGE 124 III 266.
- Marley: X. gegen Y. AG, decision of the Swiss Federal Supreme Court of September 5, 2003; BGE 130 III 168.
- Meili: Blau Guggenheim gegen British Broadcasting Corporation BBC, decision of the Swiss Federal Supreme Court of April 19, 2004; BGE 130 III 714.
- URG/LDA: Swiss Federal Copyright Act of 1992, ref. 231.1 (Urheberrechtsgesetz, URG (in German), Loi sur le droit d’auteur, LDA (in French), Legge sul diritto d’autore, LDA (in Italian)
Literature
Copyright law in general
- Hilty, Reto M.: Urheberrecht, Stämpfli Verlang, Berne 2011. ISBN 978-3-7272-8660-5. (in German)
- Rigamonti, Cyrill P.: Geistiges Eigentum als Begriff und Theorie des Urheberrechts. UFITA-Schriftenreihe Band 194, Nomos Verlagsgesellschaft, Baden-Baden 2001. ISBN 3-7890-7534-5. (in German)
- Barrelet, D.; Egloff, W.: Das neue Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2008. ISBN 978-3-7272-9563-8. (in German)
- von Büren, R.: Urheberrecht und verwandte Schutzrechte, in: Pedrazzini, Mario M.; von Büren, Roland; Marbach, Eugen: Immaterialgüter- und Wettbewerbsrecht, Stämpfli Verlag AG, Berne 1998, ISBN 3-7272-0913-5, p. 59 et seq. (in German)
- Rehbinder, M.: Schweizerisches Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2000. ISBN 3-7272-0923-2. (in German)
Copyright protection of photographs
- Friedli, Lukas: Gibt es das Bildzitat im schweizerischen URG?, in: Jusletter 24. April 2006
- Hug, Gitti: Bob Marley vs Christoph Meili. Ein Schnappschuss. In: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 1/2005. Schulthess, pp. 57–65; ISSN 1422-2019.
- Schütz, Christoph: Fotografie und Urheberrecht: Ein Sorgenkind im Wettstreit der Therapeuten, in: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 5/2006. Schulthess, pp. 36–75; ISSN 1422-2019.
- Wild, Gregor: Urheberrechtsschutz der Fotografie, in: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 2/2005. Schulthess, pp. 87–95; ISSN 1422-2019.
Notes
- ^ a b c "Federal Act on Copyright and Related Rights 1992". Swiss Federal Council - English translation (select DE, FR or IT for legally enforceable versions). 1 April 2020.
- ^ See the Legal information Archived January 19, 2005, at the Wayback Machine page at the Swiss Federal Institute of Intellectual Property.
- ^ a b Art. 2 par. 1 URG Archived January 17, 2013, at the Wayback Machine.
- ^ See the list of authorities supra for citations.
- ^ Rehbinder, p. 32; mentioning the dissertation of Johann Rudolf Thurneisen, Dissertatio juridica inauguralis de recursione librorum furtiva, zu Teutsch dem unerlaubten Büchernachdruck, Basel, 1738. Thurneisen already suggested an international treaty by which countries should protect each others copyrights based on reciprocity.
- ^ "Compte rendu des travaux du congrès de la propriété littéraire et artistique". Congress of the French Republic. 19 July 1793.
- ^ Rehbinder, p. 32.
- ^ Rehbinder, p. 40.
- ^ Rehbinder, p. 41.
- ^ Chancellory of the Swiss Confederation: Übersicht fakultative Referenden 1874 - 1900 Archived January 15, 2016, at the Wayback Machine. URL last accessed 2007-08-17.
- ^ Swiss Federal Law of April 23, 1883 on Urheberrecht an Werken der Literatur und Kunst; BBl 1883 III 241.
- WIPO: Treaties Database - Contracting Parties: Berne Convention - Switzerland Archived May 15, 2006, at the Wayback Machine. URL last accessed 2007-08-17.
- ^ Swiss Federal Law of December 7, 1922 on Urheberrecht an Werken der Literatur und Kunst; BBl 1922 III 960.
- ^ Swiss Federal Law of June 24, 1955 on Änderung des Bundesgesetzes betreffend das Urheberrecht an Werken der Literatur und Kunst; BBl 1955 I 1137.
- ^ a b Bloch.
- ^ Institut für geistiges Eigentum (IGE, Swiss Copyright Office): Urheberrecht Archived September 10, 2007, at the Wayback Machine. URL last accessed 2007-08-17.
- Nationalrat; Bundesbeschluss über die Genehmigung von zwei Abkommen der Weltorganisation für geistiges Eigentum und über die Änderung des Urheberrechtsgesetzes [dead link] (Text of the decree ratifying the WCT and the WPPT; in German); Änderung des Bundesgesetzes über das Urheberrecht und verwandte Schutzrechte(Text of the changes to the 1992 copyright law; in German). URLs last accessed 2007-10-09.
- ^ Neues Urheberrecht: was ändert sich? Archived February 11, 2012, at the Wayback Machine, DRS, podcast from July 4, 2008.
- ^ "Data Mining under the revised Swiss Copyright Act". www.ey.com. Retrieved 2024-03-16.
- ^ a b Hoi, Geraldine Wong Sak (2019-10-31). "What the new Swiss copyright law means for consumers of pirated online content". SWI swissinfo.ch. Retrieved 2024-03-16.
- ^ a b Strobel, Baker McKenzie-Eva-Maria; Marmy-Brändli, Sandra (2020-04-02). "Revised Swiss Copyright Act". Lexology. Retrieved 2024-03-16.
- ^ Art. 29 URG/LDA par. 2 Archived May 6, 2013, at the Wayback Machine
- ^ Ibid, par. 3 Archived May 6, 2013, at the Wayback Machine.
- ^ Art. 30 URG/LDA Archived May 6, 2013, at the Wayback Machine.
- ^ Art. 32 URG/LDA Archived May 6, 2013, at the Wayback Machine.
- ^ Art. 31 URG/LDA Archived May 6, 2013, at the Wayback Machine.
- ^ Art. 39 URG/LDA Archived May 6, 2013, at the Wayback Machine.
- ^ Art. 5 URG/LDA Archived May 12, 2013, at the Wayback Machine.
- ^ Marley, p. 175.
- ^ Meili, p. 720.
- ^ Ibid, p. 717.
- ^ The following is adapted from Wild, p. 92 et seq.
External links
- Latest updates about the Swiss Copyright Law, on the website of the Swiss Federal Institute of Intellectual Property.
- Swiss-Copyright, official website about the revision of the Swiss copyright law.
- Fotografie-Urheberrecht (in German)
- (in French) Droit d'auteur de photographie, website about copyright protection of photographs in Switzerland.
- (in German and English) Copyright, Patent, Trademark Information, Switzerland and International
- Federal Law on Copyright and Neighboring Rights 1992
- Public Domain FAQ by the Swiss Federal Institute of Intellectual Property