IP rights in art in Switzerland

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

Copyright automatically vests in the natural person who has created the work. An exception to this general principle concerns publishing contracts. According to statutory provisions (the Code of Obligations), where one or more authors accept a commission to work on a project originated by a publisher, the publisher owns the copyright to the work as a whole.

No copyright registration system exists under Swiss law.

What is the duration of copyright protection?

Copyright protection begins upon the creation of the work. For computer programs, the protection lasts 50 years following the death of the author. All other types of work are protected for 70 years following the death of the author.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

Copyright owners have a moral right to decide if, when, how and under what name their artwork may be published for the first time (article 9(2) of the Federal Act on Copyright and Neighbouring Rights (FACN)). Once they have made use of this right and published their artwork, it may be exhibited in public without their consent.

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

An exception to copyright protection exists for printed and digital museum catalogues if issued by the organiser of the exhibition. It extends to public and private collections, and temporary and permanent exhibitions as long as the exhibition is publicly accessible. It does not cover postcards, posters and websites. The same rule applies to the publication of auction catalogues.

Are public artworks protected by copyright?

Artworks that are permanently situated in a place that is accessible to the public or that are visible from such a place may be reproduced. The reproductions may be made available, sold, broadcast or otherwise distributed. However, the reproductions cannot be three-dimensional or serve the same purpose as the original.

Does the artist’s resale right apply?

There is no artist’s resale right under Swiss law.

What are the moral rights for visual artists? Can they be waived or assigned?

Visual artists have the right to be recognised as the author of their work and to decide whether, when and under what name their work shall be published for the first time (article 9, FACN). They further have the right to prohibit any distortion, mutilation or modification of their work that is prejudicial to their reputation or personality (article 11, FACN). Other moral rights that are less relevant in practice include the artist’s right to seek access to his or her work from the current possessor if the access is essential for him or her to exercise copyright (article 14(1), FACN). The artist may also request the possessor to provide him or her with the work for an exhibition in Switzerland (article 14(2), FACN). The latter two moral rights are only granted upon the balancing of the interests at issue. Finally, artists also have a right to protect their single original work from destruction in that the possessor cannot destroy the work without first offering it the artist against the price of the raw materials (article 15, FACN).

Moral rights are non-assignable by nature as they are considered to be inextricably linked to an author’s personality. Nonetheless, artists often waive the exercise of their moral rights on a contractual basis. This practice is accepted as long as it does not appear inequitable (ie, an excessive restriction as regards the author’s own personality (article 27(2), Civil Code)).