Copyright law of Switzerland

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The copyright law of Switzerland is based on the concept of "author's rights" (Urheberrecht in German, droit d'auteur in French), similarly 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. As of March 2006, a major revision is being undertaken to implement the WIPO Copyright Treaty in the act.

Copyright 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"^[1] 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).^[2]

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.

Contents 1 Duration of protection 2 Official documents 3 Lack of originality 4 Future modifications 5 See also 6 Notes and references 6.1 Authorities 6.2 Literature 6.2.1 Copyright law in general 6.2.2 Copyright protection of photographs 6.3 Notes 6.4 External links

[edit] 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.^[3] The protection also expires if the death must be assumed.^[4] The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable.^[5] The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died.^[6] 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).^[7]

Swiss law also protects performer's rights; the duration of protection is 50 years, starting from the end of the year when the work was performed.^[8]

Before the last major revision of the Swiss Copyright Act, in 1992, the duration of copyright was 50 years after the death of the author for all works. Works that were already in the public domain as of 1 July 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.^[9]

[edit] Official documents

The following are ineligible for copyright by law:^[10]

• laws, ordinances, 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 (but see section 3, infra);
• 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.

[edit] 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",^[1] are protected by copyright. What exactly individuality (also referred to as originality) 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 and 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.^[12] 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 conceptional and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use.^[13] For lack of an individual expression of thought,^[14] 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:^[15]

• 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 Zapruder pictures of 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.

[edit] Future modifications

In March 2006, the Swiss Federal Council released a draft project of a revision of the Swiss Copyright Law. One of the main goals of this revision is the implementation of the WIPO Copyright Treaty.^[16]

[edit] See also

• Bridgeman Art Library v. Corel Corp. for the equivalent leading case in U.S. law.
• In the Wikimedia Commons, the templates {{PD-Switzerland-official}} and {{PD-Switzerland-photo}}, respectively, can be used to tag images that are in the public domain under rules 2 and 3 above.

[edit] Notes and references

[edit] 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 (German), Loi sur le droit d’auteur, LDA (French), Legge sul diritto d’autore, LDA (Italian))

[edit] Literature

[edit] Copyright law in general

• von Büren, Roland: Urheberrecht und verwandte Schutzrechte, in: Pedrazzini, Mario M.; von Büren, Roland; Marbach, Eugen: Immaterialgüter- und Wettbewerbsrecht, Stämpfli Verlag AG, Bern 1998, ISBN 3-7272-0913-5, p. 59 et seq.

[edit] 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.

[edit] Notes

[edit] 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), Droit d'auteur de photographie (in French): website about copyright protection of photographs in Switzerland.