Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

The use of a copyrighted work covered by the exclusive rights of the copyright owner provided under FACN (see questions 6 to 10) not authorised by the author or rights holder, provided that the copyright is still under a valid duration term (see questions 32 and 33), constitutes a copyright infringement. However, an infringement does not exist if such action is covered by the exhaustion principle (first sales doctrine) (see question 9) or if a restriction of copyright applies (see question 9). An author’s or rights holder’s copyright does not only extend to identical works of an infringer. Imitations that make use of the essential creative features of a copyrighted work can also constitute an infringement.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Yes, the notion of secondary or contributory infringement exists under Swiss copyright law. The FACN provides a claim for injunctive relief against any copyright-infringing acts. In principle, this claim is applicable against anyone who engages in the same infringing activity, including secondary aiders and abettors (article 62, FACN). With regard to monetary compensation claims, the FACN and Swiss liability law principles under the Swiss Code of Obligations provide for damage claims only under specific circumstances. According to article 50 of the Swiss Code of Obligations and Federal Supreme Court practice, the cooperation of multiple parties directly or indirectly causing copyright infringements, each participant subjectively acting with thought (ie, wilfully or negligently), may lead to joint liability of these parties for the damages caused. There are, however, no clear guidelines as to how far the scope of involved persons can reach. Case law provides for various (and also inconsistent) decisions.

In a relatively recent decision, the Swiss Federal Supreme Court held that a hosting provider of a blog platform can be ordered to take down infringing user-generated content and may be ordered to pay procedural court fees irrespective of his or her knowledge on the infringing content (decision of the Swiss Federal Supreme Court 5A_792/2011 of 14 January 2013; please note, however, that this case is based on the infringement of personality rights and not copyright).

In a more recent decision, the Swiss Federal Supreme Court held that access providers cannot be ordered to block infringing content uploaded by third parties on foreign web portals (decision of the Swiss Federal Supreme Court 4A_433/2018 of 8 February 2019). This decision made clear that the provision of technical infrastructure facilitating internet access alone does not contribute or aid infringement of copyright in a sufficiently causal manner (as required under platform liability principles under Swiss law).

Available remedies

What remedies are available against a copyright infringer?

Swiss copyright law provides for various remedies against copyright infringement.

First, an author or rights holder may seek injunctive relief before the civil courts against an infringer prohibiting an imminent infringement, a judgment ordering the removal of ongoing infringements as well as, in particular cases, a declaratory judgment holding that a particular action infringes the author’s or the rights holder’s copyright (articles 61 and 62, paragraph 1, letters a and b, FACN). Injunctive relief claims may also be obtained in the form of a preliminary injunction which provides for an accelerated, simplified procedure (article 65, FACN).

Second, an author or rights holder may seek a civil court action for disclosure of the origin of infringing items against any person who is in possession of such items and for the confiscation and destruction of such items (article 62, paragraph 1, letter c, FACN).

Finally, an author or rights holder may claim damages against any infringer before a civil court (article 62, paragraph 2, FACN). Monetary compensation claims may be based on different notions of the law (ie, specific market reputation damages and reasonable attorneys’ costs, restitution of (lost) profits, restitution of unjust enrichment or the payment of an adequate licence fee (by analogy)). In addition, a court may always order the publication of the judgment upon request of the claiming author or rights holder (article 66, FACN). Such publication may help to mitigate ongoing effects of a copyright infringement. Please note that Swiss law also provides for criminal law remedies against copyright infringement (article 67, FACN; see also questions 2 and 45).

Limitation period

Is there a time limit for seeking remedies?

There is no statutory time limit for seeking injunctive relief or declarative judgments against copyright infringements. An author’s or rights holder’s claim may, however, be considered forfeited if he or she has, during an extensive time period, tolerated ongoing infringements (which were known to him or her or which he or she should have known). As for monetary compensation claims linked to copyright infringements, such claims are based on the notion of tort, agency of necessity or unjust enrichment and are therefore subject to a relatively short statute of limitation of one year from the knowledge of the infringing act (articles 60 and 67 of the Swiss Code of Obligations).

As for criminal law remedies, time limits for taking action are considerably longer (ie, usually seven years from the occurrence of an infringement (article 97 of the Swiss Federal Criminal Code; see also questions 2 and 43)).

Monetary damages

Are monetary damages available for copyright infringement?

Yes, monetary compensation claims are available for copyright infringement (see question 39). In Switzerland, the term ‘monetary compensation claims’ is used more frequently as it is broader than ‘damages’. It comprises all forms of monetary compensation triggered by copyright infringements. The legal basis of such compensation claims can vary from genuine damage claims to restitution of profits or unjust enrichment claims as well as the payment of an adequate licence fee (by analogy).

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes, according to Swiss case law, reasonable attorneys’ fees can under particular circumstances be enforced as damage claims to the extent proven that they were necessary for the prevention of an infringement. In addition, court fees and a fragment of the attorneys’ fees are awarded to the party who wins on the merits of the infringement action (based on court tariffs).

Criminal enforcement

Are there criminal copyright provisions? What are they?

The FACN provides for criminal penalties imposed on copyright infringements. The wilful infringement of copyright is punished with imprisonment of up to five years or a fine, or both. Fines may range from one Swiss franc up to a maximum of approximately 1 million Swiss francs, depending on the degree of fault and the personal and economic circumstances of the infringer (article 67, FACN). In regular practice, the sentences typically imposed are significantly lower.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

There is no specific statute or act addressing liabilities or defences against online copyright infringements. The current Swiss copyright act does not have a provider-specific legislation in place as for example the US (with the Digital Millennium Copyright Act) or the European Union (with the European E-Commerce-Directive 2000/31/EC) providing liability shields for hosting providers. Instead, the general rules and principles of Swiss copyright and liability law apply including the notions on secondary and contributory infringement (see question 38).

All civil law and criminal law remedies listed under questions 39, 41 and 43 are also available against online copyright infringements. However, the strategic enforcement of such claims is more challenging as it requires interaction with internet service providers or similar intermediaries supportive to online copyright infringement. Some internet service providers provide for voluntary, standardised takedown procedures (eg, ‘piracy cops’) while others do only act on a case-by-case basis. It is noteworthy that large providers (such as Google or Facebook) have a tendency to unify their anti-piracy policies on a regional level. Thus, practices required under EU law for such providers are often also applied in Switzerland as it is easier to administrate them on a broad geographic level even though Switzerland is not a member of the EU.

Since the internet can serve as a suitable tool for anonymity, criminal law remedies gain considerable relevance as they are frequently the only way to enforce the procurement of evidence and reveal an online-infringer’s identity. New legislation on copyright is expected in Switzerland and the NFACN provides for additional obligations of internet hosting providers to take measures against copyright infringements conducted over the internet (article 39d, FACN). (See also ‘Update and trends’.) Hosting providers may be obliged to ensure that infringing content removed from their servers stays removed from their servers (stay-down duty).

Prevention measures

How may copyright infringement be prevented?

The use of the copyright notice is not required under Swiss law, but it may be helpful for preventing infringements. Mandating a collective society with the enforcement and collection of copyright fees can also help to prevent infringements as these societies monitor and enforce monetary compensation claims (see question 5). Technical measures (DRM) to administer and control copyrighted digital content may also contribute to prevent infringement (see question 3). In addition, it is also possible to file a request with the Swiss custom authorities to temporarily retain suspected items entering the border which could infringe an author’s or rights holder’s copyright in Switzerland (article 75, FACN).