Copyright law of Switzerland
Encyclopedia
The copyright
law of Switzerland
is based on the concept of "author's rights" (Urheberrecht in German
, droit d'auteur in French
), which is similar to the French copyright law
, instead of the concept of Copyright
used in
common law
jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then. In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty
in the act, a process started in 2004 with the release by the Swiss Federal Council
of a draft project.
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" are automatically protected by copyright, irrespective of whether copyright is asserted or not, but provided that it passes the threshold of originality
necessary to constitute a protected work. In the case of photographs, the level of protection has been defined in two decisions of the Swiss Federal Supreme Court, the “Bob Marley
” case (2003) and the “Meili
” case (2004).
Certain documents are specifically excluded from benefiting from copyright protection in Switzerland; they are mostly official documents, such as law
s or ordinance
s, or pieces of currency
, but patent
s or patent application
s are also excluded from protection. These exceptions are covered in detail below.
. Geneva, which joined the Swiss Confederacy in 1815, kept the French legislation (a law that dated to 1793) and thus became the first canton
to have a copyright law. The first copyright law developed locally in Switzerland was that of the canton of Ticino
, which became effective on March 20, 1835. In the canton of Solothurn
, a copyright law entered in force in 1847.
The first constitution of Switzerland of 1848 left copyright issues to the cantons; only in the revised constitution of 1874 did copyright become an issue of federal legislation. The first federal copyright law in Switzerland was passed by the Swiss parliament on April 23, 1883 and entered in force on January 1, 1884. Two years later, Switzerland was a founding member of the Berne Convention for the Protection of Literary and Artistic Works
, which became effective on December 5, 1887.
A first revision of the law occurred in 1922. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It extended the duration of copyright to 30 years after the (last surviving) author's death (30 years p.m.a). This extension was retroactive (§62 of the 1922 law) and even placed works under copyright again if the copyright granted under the previous law had already expired. Anonymous or pseudonymous works were copyrighted for 30 years since they had been made known to the public, unless the author's identity was acknowledged within that time, in which case 30 years p.m.a. applied again. 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. The law covered works of the literature and the arts, including scientific works, maps, and photographs.
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.
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 July 1, 1993 and extended the copyright term again non-retroactively to 70 years.
In 2004, another revision of the Swiss copyright law was begun with the goal of making the law compliant with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty
(WPPT). It was finally approved by both chambers of the Swiss parliament on October 5, 2007. At the same time, the parliament also ratified the Swiss adherence to the WCT and the WPPT. The revised law entered in force on July 1, 2008.
computer programs, which are protected for 50 years after the death of the author. The protection also expires if the death must be assumed. The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable. The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died. 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).
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.
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.
It follows that photographs taken from or of these documents are also in the public domain. However:
) means for photographs has long been a focus of dispute.
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. 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. For lack of an individual expression of thought, 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:
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law of Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
is based on the concept of "author's rights" (Urheberrecht in German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
, droit d'auteur in French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
), which is similar to the French copyright law
French copyright law
The droit d'auteur developed in the 18th century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions...
, instead of the concept of Copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
used in
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then. In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty
World Intellectual Property Organization Copyright Treaty
The World Intellectual Property Organization Copyright Treaty, abbreviated as the WIPO Copyright Treaty, is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization in 1996...
in the act, a process started in 2004 with the release by the Swiss Federal Council
Swiss Federal Council
The Federal Council is the seven-member executive council which constitutes the federal government of Switzerland and serves as the Swiss collective head of state....
of a draft project.
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" are automatically protected by copyright, irrespective of whether copyright is asserted or not, but provided that it passes the threshold of originality
Threshold of originality
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...
necessary to constitute a protected work. In the case of photographs, the level of protection has been defined in two decisions of the Swiss Federal Supreme Court, the “Bob Marley
Bob Marley
Robert Nesta "Bob" Marley, OM was a Jamaican singer-songwriter and musician. He was the rhythm guitarist and lead singer for the ska, rocksteady and reggae band Bob Marley & The Wailers...
” case (2003) and the “Meili
Christoph Meili
Christoph Meili is a Swiss whistleblower and Swiss-American security professional.In early 1997, Meili worked as a night guard at the Union Bank of Switzerland in Zurich, Switzerland...
” case (2004).
Certain documents are specifically excluded from benefiting from copyright protection in Switzerland; they are mostly official documents, such as law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s or ordinance
Local ordinance
A local ordinance is a law usually found in a municipal code.-United States:In the United States, these laws are enforced locally in addition to state law and federal law.-Japan:...
s, or pieces of currency
Currency
In economics, currency refers to a generally accepted medium of exchange. These are usually the coins and banknotes of a particular government, which comprise the physical aspects of a nation's money supply...
, but patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s or patent application
Patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
s 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, the topic remained unregulated by law until the 19th century. The first copyright legislation in Switzerland was introduced during the times of the French occupation in the Napoleonic eraSwitzerland in the Napoleonic era
During the French Revolutionary Wars, the revolutionary armies marched eastward, enveloping Switzerland in their battles against Austria. In 1798 Switzerland was completely overrun by the French and became the Helvetic Republic. The Helvetic Republic encountered severe economic and political problems...
. Geneva, which joined the Swiss Confederacy in 1815, kept the French legislation (a law that dated to 1793) and thus became the first canton
Cantons of Switzerland
The 26 cantons of Switzerland are the member states of the federal state of Switzerland. Each canton was a fully sovereign state with its own borders, army and currency from the Treaty of Westphalia until the establishment of the Swiss federal state in 1848...
to have a copyright law. The first copyright law developed locally in Switzerland was that of the canton of Ticino
Ticino
Canton Ticino or Ticino is the southernmost canton of Switzerland. Named after the Ticino river, it is the only canton in which Italian is the sole official language...
, which became effective on March 20, 1835. In the canton of Solothurn
Solothurn
The city of Solothurn is the capital of the Canton of Solothurn in Switzerland. The city also comprises the only municipality of the district of the same name.-Pre-roman settlement:...
, a copyright law entered in force in 1847.
The first constitution of Switzerland of 1848 left copyright issues to the cantons; only in the revised constitution of 1874 did copyright become an issue of federal legislation. The first federal copyright law in Switzerland was passed by the Swiss parliament on April 23, 1883 and entered in force on January 1, 1884. Two years later, Switzerland was a founding member of the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, which became effective on December 5, 1887.
A first revision of the law occurred in 1922. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It extended the duration of copyright to 30 years after the (last surviving) author's death (30 years p.m.a). This extension was retroactive (§62 of the 1922 law) and even placed works under copyright again if the copyright granted under the previous law had already expired. Anonymous or pseudonymous works were copyrighted for 30 years since they had been made known to the public, unless the author's identity was acknowledged within that time, in which case 30 years p.m.a. applied again. 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. The law covered works of the literature and the arts, including scientific works, maps, and photographs.
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.
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 July 1, 1993 and extended the copyright term again non-retroactively to 70 years.
In 2004, another revision of the Swiss copyright law was begun with the goal of making the law compliant with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...
(WPPT). It was finally approved by both chambers of the Swiss parliament on October 5, 2007. At the same time, the parliament also ratified the Swiss adherence to the WCT and the WPPT. The revised law entered in force on July 1, 2008.
Duration of protection
Copyright protection for most protected works expires 70 years after the death of the author under Swiss law, the only exception beingcomputer programs, which are protected for 50 years after the death of the author. The protection also expires if the death must be assumed. The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable. The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died. 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).
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.
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.
Official documents
The following are ineligible for copyright by law:- lawLawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s, decreeDecreeA decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s, international treatiesTreatyA treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
or other official acts - decisionCase lawIn law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
s, protocolProtocol (politics)Protocol can mean any logbook or other artifact of a political meeting between persons from different nations, such as the Kyoto Protocol on Climate Change. The most notorious example of a forged logbook is "The Protocols of the Elders of Zion"....
s or reports by public authorities - pieces of currencyCurrencyIn economics, currency refers to a generally accepted medium of exchange. These are usually the coins and banknotes of a particular government, which comprise the physical aspects of a nation's money supply...
- patentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s or patent applicationPatent applicationA patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
s
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", are protected by copyright. What exactly individuality (also referred to as originalityOriginality
Originality is the aspect of created or invented works by as being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or derivative works....
) means for photographs has long been a focus of dispute.
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. 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
Christoph Meili
Christoph Meili is a Swiss whistleblower and Swiss-American security professional.In early 1997, Meili worked as a night guard at the Union Bank of Switzerland in Zurich, Switzerland...
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. For lack of an individual expression of thought, 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:
- 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 paintingPaintingPainting is the practice of applying paint, pigment, color or other medium to a surface . The application of the medium is commonly applied to the base with a brush but other objects can be used. In art, the term painting describes both the act and the result of the action. However, painting is...
, must be considered independently. - "Merely" illustrative and portraitPortraitthumb|250px|right|Portrait of [[Thomas Jefferson]] by [[Rembrandt Peale]], 1805. [[New-York Historical Society]].A portrait is a painting, photograph, sculpture, or other artistic representation of a person, in which the face and its expression is predominant. The intent is to display the likeness,...
images also tend not to be protected, at least if the compositionComposition (visual arts)In the visual arts – in particular painting, graphic design, photography and sculpture – composition is the placement or arrangement of visual elements or ingredients in a work of art or a photograph, as distinct from the subject of a work...
, post-processingPost-processingPost-processing may refer to:* Differential GPS post-processing* Video post-processing, methods used in video processing and 3D graphics* Finite element model data 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 Abraham ZapruderAbraham ZapruderAbraham Zapruder was an American manufacturer of women's clothing. He was filming with a home-movie camera as U.S. President John F...
pictures of the Kennedy assassinationJohn F. Kennedy assassinationJohn Fitzgerald Kennedy, the thirty-fifth President of the United States, was assassinated at 12:30 p.m. Central Standard Time on Friday, November 22, 1963, in Dealey Plaza, Dallas, Texas...
). On the other hand, an image can be a "snapshotSnapshot (photography)A snapshot is popularly defined as a photograph that is "shot" spontaneously and quickly, most often without artistic or journalistic intent. Snapshots are commonly considered to be technically "imperfect" or amateurish—out of focus or poorly framed or composed...
" and still be protected as an individual work. - The impression is given that the mere aesthetic appealAestheticsAesthetics is a branch of philosophy dealing with the nature of beauty, art, and taste, and with the creation and appreciation of beauty. It is more scientifically defined as the study of sensory or sensori-emotional values, sometimes called judgments of sentiment and taste...
of a photograph may contribute to its originality.
See also
- Bridgeman Art Library v. Corel Corp.Bridgeman Art Library v. Corel Corp.Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 , was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack...
for the equivalent leading case in U.S. law. - International copyrightInternational copyrightWhile no creative work is automatically protected worldwide, there are international treaties which provide protection automatically for all creative works as soon as they are fixed in a medium...
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 , Loi sur le droit d’auteur, LDA , Legge sul diritto d’autore, LDA
Copyright law in general
- Hilty, Reto M.: Urheberrecht, Stämpfli Verlang, Berne 2011. ISBN 978-3-7272-8660-5.
- 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.
- Barrelet, D.; Egloff, W.: Das neue Urheberrecht, 3nd ed. Stämpfli Verlag, Berne 2008. ISBN 978-3-7272-9563-8.
- 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.
- Rehbinder, M.: Schweizerisches Urheberrecht, 3rd ed. Stämpfli Verlag, Berne 2000. ISBN 3-7272-0923-2.
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; .
- 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; .
- Wild, Gregor: Urheberrechtsschutz der Fotografie, in: Sic! Zeitschrift für Immaterialgüter-, Informations- und Wettbewerbsrecht 2/2005. Schulthess, pp. 87–95; .
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 Droit d'auteur de photographie, website about copyright protection of photographs in Switzerland., Copyright, Patent, Trademark Information, Switzerland and International
- Federal Law on Copyright and Neighboring Rights 1992