Object of legal protection
In order for a work to be protected by copyright, it has to comply with the notion determined by law. Pursuant to Article 2 of the Swiss Federal Act on Copyright and Related Rights (CopA), a work must:
- be an intellectual creation;
- have individual character;
- fall into the remit of literature or art.
Value or quality of the work are of no significance. Ordinary works are protected just like works of a master. Furthermore, their purpose is of no importance: As a consequence, a commodity can also be a protected work. The remits of literature and art shall be interpreted in the broadest sense.
The CopA does not provide an exhaustive list of works that would be considered as intellectual creations. It is merely restricted to providing examples, particularly the following:
- linguistic works (literature, journalism etc.);
- works with scientific or technical content (e.g. dissertations, plans, maps, drawings etc.);
- musical works or other acoustic works;
- works of visual and plastic arts (paintings, sculptures, graphic works etc.);
- audiovisual works (feature films, videos, animated films etc.)
- works of architecture;
- works of applied art;
- photographic works;
- choreographic works and works of mime (pantomime)
Drafts, titles and parts of works, if they are intellectual creations with an individual character, are also considered to be works; this also applies to computer programs (software).
The law also grants intellectual creations work character if they are based on a pre-existing work and exhibit individual features. Thus translations and adaptations are protected in their own right (the term "derivative works" is used in this context), but the protection of the pre-existing work remains reserved. The law also includes serial publications and compilations if they fulfil three basic prerequisites.
The notion of a work follows developments in society and is not identical at international level. It is a regular subject of various expert dissertations and legal decisions which may appear contradictory.
An idea does not constitute a work
Copyright is based on another fundamental principle: in order for a work to qualify for protection, it has to be expressed, perceivable (visibly or audibly). An idea which is only in someone's head, no matter how elaborate and detailed it may be, does not enjoy any protection at all, unless it has been expressed and substantiated by means of sounds, signs, colours, other materials, gestures etc. An idea not exhibiting individual character, however, is not protected by law, even if it has been transferred into a perceivable form.
The law does not place contents above form. It protects the connection of the two, the substance expressed by the author in the form given to it by him/her without protecting the style as such. The specific expression is subject of the protection, not the idea itself.
In order for a work to be protected by law, no formalities - such as entering it into a register or database or adding the well-known © sign - are required.
Rights owners and the term of protection
Our legal system only considers natural persons who have created a work to be its authors (Art. 6 CopA). It follows that the original owner of the copyright is never the employer, commissioning party or the party ordering a work, but always the individual giving form to an intellectual process.
Legal entities (such as production companies) are never considered as authors. They may only become rights owners if the natural person who created the work transfers specific copyrights to them.
Until the contrary is proved, the person mentioned on the work copies shall be considered as the author of the work. This kind of indication of the author may be under their patronym or a pseudonym.
Several authors can be involved in the creation of a joint work (Art. 7 CopA). In this case they are regarded as co-authors and they are jointly entitled to the copyright in the work.
If someone modifies, adapts or translates an already existing work of another author, the work thus created is referred to as a derivative work. In order for such a work to be protected it needs to meet the conditions determined by law i.e. it must have individual character with regards to the form or the execution of the modifications. A natural person creating a derivative work shall be regarded as the author and holds any copyrights in their work. They may, however, not exercise their rights in a completely unrestricted manner, as the rights in the existing work remain reserved. The person creating the modification (or the translator) therefore have to obtain the authorisation of the author of the existing work before they are permitted to use the adaptation or translation derived from said existing work.
Term of protection
Protection arises as soon as a work is created, not only upon its distribution (Art. 29 CopA). Protection of copyright is limited in time. It terminates on 31st December of the 70th year after the death of the author.
If the work was created by two or more authors, protection terminates 70 years after the death of the last surviving joint author (Art. 30 CopA). In the case of audiovisual works, the calculation of the term of protection is based on the year of death of the (film) director only (Art. 30 CopA).
If an author dies, the respective copyright passes on to the legal successors. The legal successors do not only acquire the economic rights but also the privilege pertaining to moral rights. In particular, they are entitled to issue authorisations for use, negotiate new rights transfers and to defend the protected works against attacks on their integrity or the identity of the deceased author.
Common Property (Public Domain)
As soon as the term of protection has expired, the works are regarded as common property (quite often the expression "public domain" is used to describe works that have come out of their term of protection). Said works may be used by anyone "for free"from that point in time onwards.
Scope of copyright (authors' rights)
The main point of copyright (authors' rights) is that the rights owners hold the exclusive right to prohibit or permit the use of their works, as well as to determine the conditions of any potential uses of the work. By granting an author the right to dispose freely of his works, the law provides authors with two prerogatives of a different nature: Moral rights and economic rights
The personal prerogatives affect the protection of the authors' identities with regards to their works. Such prerogatives are therefore summarised under the umbrella moral rights. In Switzerland, moral rights are made up of three elements:
- The paternity right related to the recognition of the intellectual authorship of the work, i.e. to be named (or not to be named) as the author;
- The right to decide on the first publication of the work;
- The right relating to the protection of the integrity of the work, i.e. the right of the author to refuse any modification of the work which would infringe his personality.
Prerogatives in the economic rights area allow authors to draw economic benefits from the use of their works.
In practice, economic rights are subdivided into several specific rights: reproduction rights, broadcasting rights, performing rights, adaptation rights, translation rights etc.
Limits of copyright (authors' rights)
The law limits copyright by a few provisions, in particular so that private uses are simplified and some users' categories (e.g. schools) have a more simplified access to works.
From such limitations emerges that some uses are admissible even without the author's permission. This does not mean, however, that these uses are always free of charge!
In the case of retransmission rights, for example, the legislator has decided to apply a different kind of limitation: the authorisation for the retransmission may only be granted by an officially recognised collective management organisation.
The law permits the use of a protected work for personal purposes without a remuneration having to be paid to the author for such uses. Such free uses are based on common sense. Everyone may, for example, record his or her own interpretation of a play, or translate the lyrics of a song for their own use. The law goes even further: it actually extends the personal sphere to the circle of friends and relatives. It requires, however, that such friends or relatives are closely related or linked to one another.
Permitted uses against payment
Further private uses of broadcast works are permitted but entail a remuneration payable to the authors. In Switzerland, this applies particularly to educational uses (by teachers and students). The remuneration due to the authors may only be collected by collective management organisations. Remuneration for blank media and rental rights is another good example for this limitation.
Transfer of rights
Authors usually do not create their works just for themselves, but wish for them to be viewed or heard by the public. The public, on the other hand, would like to see the access to the works to be as unencumbered as possible.
Thus, it is rather important that someone bridges the gap between the authors and the public must be filled: this is done by the users (e.g. a film producer or an events organiser). The users usually carry the financial risk of the production. They try to invest under the most favourable conditions with a rather solid guarantee for success.
Prior to each use of a protected work, the user must obtain an authorisation from the author. Such authorisations are granted to the users by means of an agreement, with contracts in writing being the most recommendable form.
Agreements & Contracts
A distinction is made between assignment agreements and licensing contracts:
By means of an assignment agreement, the author (the assignor) transfers his authors' rights in whole or in part for a specific duration and a specific country to the assignee. The assignment shall be valid vis-a-vis all other persons, also the author who is no longer owner of the transferred rights.
By means of a licensing contract, the author (the licensor) grants the licensor specifically determined uses of the work for a specific duration and a specific country (this can be on an exclusive or a non-exclusive basis). The copyright is actually not transferred, and the licensee therefore may not exercise his rights vis-a-vis third parties. Licences are therefore often referred to as "authorisations of use".
Negotiations between authors and users may turn out to be disappointing, especially for authors whose economic influence is usually weaker. Against this background, authors' rights societies such as SSA play an important role.
By becoming a member of SSA, authors assign certain rights to us. SSA thus represents authors if a user wishes to make use of such rights and determines the general conditions for the exploitation of the entire SSA repertoire: this is what we refer to as collective management.
In other areas, authors who are SSA members commit to only have licences issued by us under the scope of the general conditions that we have negotiated and agreed on with the users.
SSA supports its members when it comes to entering into contracts, gives advice and points out provisions that are to their advantage. Above and beyond that, SSA also checks individual contracts authors wish to conclude with respect to their compatibility with the rights that the authors have assigned to SSA by accepting its Statutes.
SSA also warmly recommends that its authors should run any contracts they intend to sign past SSA's legal department. SSA also offers a choice of model contracts providing an excellent base for negotiation.
Copyright is an individual right of the authors regarding their works.
The first type of copyright exploitation therefore consists of a direct relation between the author and the user, such as that between a stage writer and a theatre.
Even though authors may freely dispose of the right of use and contact users of their works directly, they prefer to involve an authors' rights society in certain cases. They instruct the societies to centralise any requests, issue authorisations for use in their names, collect and distribute the remuneration. This procedure is referred to as "individual management".
Voluntary collective management
Certain work types are destined to be exploited intensively without the authors always being in a position to negotiate the financial conditions of a licence up front.
As a consequence, authors have formed authors' rights societies or other copyright associations in order to have more clout by being collectively represented at the negotiation table: This is referred to as voluntary collective management.
By signing a declaration of affiliation with an authors' rights society, authors transfer a part of their authors' rights so that these may be managed by the society on a fiduciary basis. Collective management of copyright makes it easier to control exploitations and issue global licences; it also facilitates the collection and distribution of authors' remuneration.
This applies in particular with regards to the exploitation of broadcasting rights (radio and TV). It is easier, both for the broadcaster and the author, to instruct a society representing the entire repertoire with the negotiation, the collection and the distribution of authors' remuneration.
Mandatory collective management
In very special cases constituting a limitation of the authors' exclusive rights, the law forces rights owners to exercise such rights collectively by way of organising themselves in collective management organisations. Only such CMOs are entitled to issue the necessary licences and collect the respective remuneration. The types of usage subject to this regime are retransmission rights (simultaneous and unaltered), and public reception of broadcast works, work rentals for private purposes, blank media remuneration and reprographic remuneration (for photocopies), as well as work usage for educational purposes and at the workplace.
Collective management organisations collect the remuneration based on the tariffs determined by them from the users (a uniform tariff for each type of usage and one single collection agent) and distribute the remuneration collected to the authors.
An author is not obliged to join a collective management organisation; if, however, he decides not to do so, he cannot exercise the rights subject to mandatory collective management and therefore cannot collect any remuneration arising thereof either.
We would also like to point out that the collective management organisations in Switzerland are under supervision by the Federation (i.e. the IPI, the Swiss Federal Institute for Intellectual Property).
SSA's areas of competence
From a legal point of view, the form of organisation and areas of competence of an authors' rights society may vary significantly.
It is important to know that SSA obtains the legal authority to manage the rights of its members for specific categories of use of their works by means of the membership agreement.
Members therefore assign some of their rights of use to SSA so that the latter may take over collective management for their entire work repertoire, i.e. the works they have already created and those they are yet to create.
Neighbouring rights, authors' rights and copyright
Pursuant to the provisions of the Rome Convention, the Swiss legislator also grants exclusive rights pertaining to their performances to performing artists (performers), producers of audio and audiovisual recordings and broadcasters.
Such rights are also referred to as "related rights" as they are directly derived from copyright and therefore also permit performing artists in particular to prohibit any use of their performance.
The prohibition they may pronounce shall only apply to their own interpretation/performance of the work and not for the work itself (therefore such rights are also often referred to as "performance protection rights").
Further information to related rights can be found on the website of SWISSPERFORM, the Swiss collective management organisation for neighbouring rights.
Authors' rights or copyright?
Many countries are signatories of the Berne Convention for the protection of literary and artistic works as well as the Universal Copyright Convention. There seems to be a general consensus concerning this subject. Nevertheless, there are two completely different approaches in terms of copyright:
- the Anglo-American legal tradition (Common Law),
- the Continental European legal tradition based on Roman Law (Civil Law).
In the Common Law system, authors' rights are referred to as "copyright" (reproduction right). This concept is based on the legal protection of published works aimed at the commercialisation, regulating the use of works via their reproduction. The Continental European system, however, is aimed at the individual. This concept is based on the author, the actual person who owns personal and financial rights and who can, with the assistance of legislation, control the exploitation of his or her work.
Those two legal concepts are not congruent: while copyright is less extensive regarding the personal rights of an author, it is more comprehensive regarding the definition of the protected subject matter. Furthermore, copyright includes a wider circle of protected persons when it comes to reproduction rights, as it also comprises legal entities. If e.g. an author creates a work as part of a service contract, an assignment or for the purpose of a film production, the employer, the commissioning party or the film producer shall be regarded as the original copyright owners as the legal assumption is made that a transfer of rights has taken place - unless an agreement to the contrary has been made.