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Have there been any notable recent legal developments regarding copyright in your jurisdiction, including any regulatory changes and recent case law?
The Swiss Federal Council (executive body) has prepared a draft bill to amend the Swiss Copyright Act. The Swiss Parliament is expected to discuss and decide on the draft bill towards the end of 2018 or the beginning of 2019. The draft bill proposes various amendments to the Copyright Act and intends, among other things, to improve the ‘value gap’. One of the bill’s declared goals is "to adopt an even more forceful approach to tackling internet piracy".
The proposals made in the draft bill are discussed in various other sections of this article.
Have there been any notable technological advances or developments to assist copyright owners in protecting and enforcing their rights?
Current Swiss law provides no rules on the liability of internet service providers with regard to copyright infringement. The draft Copyright Act Amendment Bill provides for two new rules intended to facilitate copyright enforcement.
First, the draft introduces a so-called ‘duty to stay down’ provision: infringing content that has been taken down must remain down. The hosting providers are obliged to prevent, by all technical and economically reasonable means, that content be made available to the public in an infringing way if:
- the work has already been made available to the public in an infringing way by the same hosting provider and has been taken down;
- the hosting provider was notified about the infringement; and
- the hosting provider’s technical functionalities or business model present a special danger of copyright infringement.
The violation of this new duty to stay down is deemed to constitute a special likelihood of copyright infringement that entitles the rights holder to request a cease and desist order.
Second, a new provision establishes that a copyright owner is entitled to process personal data of potential infringers as far as such data processing is necessary to prepare a criminal complaint and a civil law damage claim connected to the criminal complaint. This provision is intended to overcome the legal uncertainty originating from a decision of the Swiss Federal Supreme Court holding that internet protocol (IP) addresses qualify as personal data and, therefore, the collection of IP addresses and the identification of the owners of such IP addresses qualify as an illegal processing of personal data.
What is the primary legislation governing copyright in your jurisdiction?
The primary legislation is the Swiss Copyright Act (SR 231.1). The act came into force in 1992 and has been amended a few times since. A new draft amendment bill will be debated in Parliament in the near future.
Is your jurisdiction a party to any international agreements relating to copyright?
Switzerland is a signatory of all relevant international treaties, including:
- the Berne Convention for the Protection of Literary and Artistic Works;
- the Agreement on Trade-related Aspects of Intellectual Property Rights;
- the World Intellectual Property Organisation (WIPO) Copyright Treaty;
- the WIPO Phonogram Producers and Performers Treaty;
- the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961);
- the Convention for the Protection of Producers of Phonograms against Unauthorised Duplications of their Phonograms (1971); and
- the Convention relating to the Distribution of Program-Carrying Signals transmitted by Satellite (1974).
Although Switzerland is not a member of the European Union, its Copyright Act is in many respects compliant with EU law. That said, Switzerland does not recognise a droit de suite or a sui generis right for database protection. Regarding private use, Switzerland is more generous with consumers and allows private use from all sources, even where copyright infringement is obvious.
Online and digital regulation
Are there any legal provisions specifically covering digital and online content?
The Copyright Act provides for an exclusive right of the rights holders to make a work available online, as well as for a protection of digital rights management systems.
The draft Copyright Act Amendment Bill provides for a duty of internet service providers to keep infringing content down and for an allowance to process data of copyright infringers to prepare a penal complaint (see the section titled “Recent developments”).
Are any government authorities charged with regulating and enforcing copyright law?
In addition to the civil courts and the penal and customs enforcement systems, the Swiss Institute of Intellectual Property is competent to supervise the copyright management organisations. The Swiss Federal Arbitral Commission for Copyright and Neighbouring Rights is the supervisory body in charge of approving the royalties decided by these copyright management organisations.
What works are eligible for copyright protection in your jurisdiction?
The expression of an idea (eg, a novel written by an author) is copyrightable, while the idea underlying the work is itself not protectable (eg, the idea supporting a love story).
A work has to be the creation of a human being, not a thing found in nature or created by coincidence. In addition, the work has to show individual character. The work itself has to be individual – as a rule of thumb, this means that another author would not have created the work in the same way. The standard for individuality is however relatively low.
Are there any special provisions for the protection of non-artistic works (eg, software and databases)?
Software is protected similarly to works of literature – the same requirements apply in order to warrant copyright protection. However, the Copyright Act provides specific rules with regard to some of the rights and exceptions applying to computer software.
Switzerland applies no sui generis right to databases. Databases are protected when the selection or arrangement of data shows individual character. Hence, an exhaustive database in which the data is arranged by criteria such as alphabetical order, numerical order or chronology, for instance, is not protectable under the Copyright Act.
Are any works explicitly excluded from copyright protection?
No works are excluded from copyright protection.
Related IP rights
Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?
Under Swiss law the various sets of rules providing for IP right protection are applied independently – that is, copyrightable works can be protected by other IP rights too if they comply with the applicable requirements for protection.
Establishment of rights, registration and deposit
Establishment of rights
How is copyright established in your jurisdiction? Is registration, deposit or any other formality required?
Copyright protection is not subject to any formal requirements such as registration or deposit.
Registration and deposit – procedure and effects
What is the procedure for copyright registration and deposit (whether mandatory or voluntary)?
Swiss law does not provide for any procedure for copyright registration or deposit.
If voluntary, what are the benefits of registration/deposit?
Who may own copyright in a work?
The original rights owner is the author – that is, the individual who created the work. Legal entities cannot acquire original right ownership.
Joint and collective ownership
What rules and restrictions govern the joint or collective ownership of a copyright work?
In case two or more authors create a work together, they own the copyright in such work collectively. If the rights owners have not entered into an agreement addressing such questions, each of the owners can veto the exploitation of the work, unless such veto violates the principle of good faith. That said, each of the owners is entitled to enforce the copyright in the work, but they can request relief in favour of all co-authors only.
A special rule is applicable where the parts created by an author can be separated from the rest of the work: such author can exploit his or her part separately, as long as this does not hinder the exploitation of the entire work.
Employee and commissioned work
What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?
In principle, it is always the individual creating the work who originally acquires the copyright. This is also applicable where independent contractors or employees created the work. However, an agreement can provide for a transfer of copyright. Such a transfer of rights need not be made explicitly. It can be based on contract interpretation or tacit mutual understanding. Especially, but not only, in employment agreements a transfer can occur despite the lack of an explicit provision. On balance, though, it is better to address formally the question of who should become the rights owner.
Exercise of rights
What rights are afforded to copyright owners (including rights to use and limit the use of the copyrighted work)?
Under Swiss law the copyright owner decides how a work is used. He or she can prohibit any third party from making use of the work in any way. Hence, the copyright owner decides whether or not the work is copied, distributed, performed, made available online, broadcast, etc. An exclusive right missing from Swiss law is the right to rent a work; such a right is provided only for computer software.
In addition, moral rights are protected in favour of the author. These rights comprise the right to be named as an author, the right to oppose alterations violating the personality of the author and the right of first publication. The character of these rights means that they are non-transferable, but the author can waive them.
Are there any limits or restrictions on the rights holder’s exercise of its rights, including any fair use allowances and parody exceptions?
Swiss law provides limitations to the exclusive rights of the copyright owner. The most important limitations are as follows:
- Private use of a work, including in a circle of friends or relatives, is allowed in all cases, even if the copy of the work is obviously illegal. However, a statutory royalty is charged on empty storage materials (eg, blank CDs).
- A work can be used by a teacher in the classroom for educational purposes.
- Companies, institutions and the administration are allowed to make copies of a protected work for internal informational purposes. However, a statutory royalty is charged.
- The work’s owner is allowed to make a copy of the work for strictly archival purposes.
- Published works can be cited by others. And, for the purpose of reporting on current news, extracts from others’ articles and radio or television programmes are allowed.
- Parodies of of pre-existing works are allowed under the Copyright Act.
- Where it is necessary to make a copy during a technical communication process, such a copy is allowed if it is an ephemeral copy lacking economical significance.
- The exclusive right to distribute a work is exhausted by the sale of the work or a sale to which the rights holder has given his or her consent.
What ancillary or neighbouring rights arise in relation to copyright (if any)? Are there any rules or restrictions on their exercise?
Neighbouring rights are granted to performers, producers of phonograms or films and to broadcasting organisations. The rights holders are entitled to record a performance, to reproduce or distribute a recording, to communicate them to the public and to make them available online. In principle, the same limitations are applicable as for copyright.
When does copyright protection begin and what is the duration of protection?
The term of protection is currently 50 years from the performance or recording. The Copyright Act Amendment Bill proposes to extend the term of protection to 70 years after the death of the author of the work (in fact, the term of protection would expire on 31 December following such date).
Transfer, assignment and licensing
Transfer and assignment
What rules, restrictions and procedures govern the transfer and assignment of copyright? Are any formalities required to secure the legal effect of the transfer or assignment?
Under Swiss law copyright can be transferred collectively or in part. No formalities are applicable.
Moral rights are, in principle, not transferable, but the rights holder can waive them to enforce his or her moral rights.
What rules, restrictions and procedures govern copyright licensing?
Copyright can be licensed without restrictions. The content of a licence depends on the mutual agreement of the licensor and the licensee. The ordinary rules pertaining to contracts apply.
According to the Copyright Act, the holder of an exclusive licence has standing to sue against infringers, unless the licensing agreement excludes such a possibility.
Are there any special provisions governing sub-licensing?
In principle, the licensee is not entitled to grant sub-licences, unless the licensing agreement provides for such a right. Some scholars argue that in certain circumstances (eg, exclusive licence), the licensee should be entitled to grant sub-licences, even if the agreement does not provide for such a possibility.
What collective licensing bodies operate in your jurisdiction and how are their activities regulated?
In Switzerland, five collective licensing bodies have been incorporated. They are supervised by the Swiss Federal Institute of Intellectual Property. The rights holders join the licensing bodies and assign some of their rights to receive statutory licences to the collective licensing bodies. The bodies collect and enforce the statutory licences. The amount of the royalties is established by the collective licensing bodies and approved by a special arbitral commission. The monies collected by the collective licensing bodies are distributed to the rights holders in accordance with a regulation, which has to be approved by the Swiss Federal Institute of Intellectual Property.
Which courts are empowered to hear copyright disputes?
Each of the 26 Swiss cantons has to name a cantonal court to be competent to decide copyright disputes in the first instance. The judgments of the cantonal courts can be appealed to the Swiss Federal Supreme Court.
What acts constitute copyright infringement in your jurisdiction (including with regard to online and digital content)?
To make use of a copyrighted work without the authorisation of the rights holders constitutes an infringement. There is no requirement for the use to be intentional or negligent for infringement to exist.
Is contributory infringement recognised in your jurisdiction (including liability for internet services providers and other online/digital actors)?
The draft Copyright Act Amendment Bill provides that internet providers that host infringing materials cannot re-upload infringing materials again if they have already taken them down. Other than this, providers are not liable for copyright infringement. Whether this is acceptable in a digital environment is however debatable.
What actions can be taken against copyright infringement (eg, civil, criminal or administrative), and what are the key features and requirements of each?
A rights holder can file a civil or a criminal action, or can ask for the assistance of the customs authorities.
With a civil action, the rights holder can request that the court assesses the infringement, that the infringer stops its infringements or that the infringer pays damages. The requirement to obtain damages is the existence of:
- intentional or negligent behaviour;
- damages; and
- a causal link between the infringement and the damages.
It is also possible to claim monies based on unjust enrichment: the amount is equal to the licence fee not earned by the rights holder. According to Swiss law, financial compensation is granted only to the extent to which the rights holder has suffered a loss or missed a possibility to earn a licence fee.
In criminal proceedings, the investigative authority collects the evidence. Where the infringement was intentional or negligent, the infringer can be fined. In addition, infringing materials can be seized.
Lastly, the customs authorities can be asked to hold back infringing materials at the border. In such cases, the rights holder must initiate civil proceedings to justify the customs authorities’ procedure.
Who can file a copyright infringement action?
The rights holder has standing to sue in case of infringement. In addition, the holder of an exclusive licence has standing to sue.
What is the statute of limitations for filing infringement actions?
The statute of limitation for a damage claim based on copyright infringement is one year from gaining knowledge of the infringement. In any case, the claims are time-barred 10 years after the infringement. In case of continual infringement, the limitation period starts to run only once the infringing behaviour is terminated.
What is the usual timeframe for infringement actions?
A copyright infringement suit typically lasts from one to three years, depending on the complexity of the case. Appellate proceedings to the Supreme Court take one year.
What are the typical costs incurred in infringement actions?
The court costs are calculated on the basis of the value in dispute and borne by the parties depending on whether they have won or lost the case.
How are attorneys’ fees handled? Can they be claimed in infringement actions?
Compensation is adjudicated by the courts depending on which party has won the case. The amount of the attorneys' fees adjudicated is based on the value in dispute, on the actual fees and on the complexity of the case.
What rules and procedures govern the issuance of injunctions to prevent imminent or further infringement?
A rights holder can request injunctive relief (interdiction of infringements or seizure of infringing goods). The rights holder has to deliver prima facie evidence that an infringement has taken place and that he or she will suffer a disadvantage not easy to cure if the injunction is not granted. In case the rights holder requests an ex parte injunction, he or she also has to prove that urgency is at stake.
What remedies are available to owners of infringed copyrights?
The owner of infringed copyrights has the following remedies:
- assesment of the infringement;
- interdiction of the infringing behaviour;
- seizure of infringing materials; and
- financial relief.
What customs enforcement measures are available to halt the import or export of pirated works?
Customs can be asked to seize infringing materials. In such case, the rights holder must initiate a law suit starting with injunctive relief.
What defences are available to infringers?
The potential infringer can raise all possible defences. Among others, it can argue that the work does not comply with the requirement for copyright protection and, therefore, no infringement is possible. Another defence could be to show that the claimant has not created the work and therefore has no standing to sue. A further possibility could be to dispute that an infringement has taken place. Moreover, it is possible to argue that the defendant has created the work itself and did not know about the claimant’s work; however, scholars are not unanimous in believing that such a ‘parallel creation’ is possible.
What is the appeal procedure for infringement decisions?
The judgments of the cantonal courts can be appealed to the Swiss Federal Supreme Court. The Supreme Court examines only questions of law. Questions of fact are examined only if the cantonal court has issued an arbitrary judgment. The Supreme Court typically dismisses the appeal or remands the case to the cantonal court to correct the identified mistakes.
Protection and enforcement measures
What special measures and safeguards should rights holders consider in protecting their online/digital content?
The rights holders are exclusively entitled to upload their works. To protect a work better, it is possible to combine the works with digital rights management systems that prevent others from copying or altering the work. Such systems are protected by law and the circumvention of such systems is illegal, unless a person entitled to make private use of a work circumvents a system on his or her own for such allowed purpose.
As explained above, internet service providers are currently not liable for contributory infringement. It is unclear what the requirements for such liability would be.
According to the draft Copyright Act Amendment Bill, rights owner can collect data about infringers and infringements in order to prepare a criminal complaint. However, only the investigative authority can identify the infringers on the basis of data collected online.