Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

Copyrights are vested in the author who created the work. An author is always considered to be the natural person who created an individual work (not, for example, a legal entity hiring such authors to work for them; article 6, FACN). If multiple authors have contributed to the creation of the work, the copyright is owned jointly by them. In the latter case, ownership may only be exercised with the consent of all other co-authors, unless they have agreed otherwise. However, if the individual contributions can be separated and the authors have not agreed otherwise, each co-author may use his or her contribution independently (article 7, FACN).

Employee and contractor work

May an employer own a copyrighted work made by an employee?

In Switzerland, there is no ‘work for hire’ doctrine. Nor does an automatic transfer of copyright occur within an employment relationship provided under statutory law. Copyrights are only transferred from an employee to the employer by virtue of contractual assignment. A substantial majority of Swiss scholars hold the view that monetary exploitation rights of copyright can sometimes be transferred implicitly to the employer if this is required by the purpose of the employment relationship (purpose assignment theory). However, the theory is controversial. Thus, it is recommended to use explicit assignment language to transfer copyright to the employer.

With regard to computer programs created by employees in the course of their employment and as a part of their contractual duties, article 17, FACN provides that the employer alone is entitled to exercise monetary exploitation rights and the exclusive right of use of any copyright in such computer programs.

May a hiring party own a copyrighted work made by an independent contractor?

Copyrights are always vested in the author who created the work (see question 22). Therefore, a hiring party will not automatically acquire ownership of copyright in a work made by an independent contractor. The copyright must be assigned to the hiring party with respective provisions in the hiring contract. To achieve effectiveness, the hiring contract and assignment need not be in writing. However, a written contract will always provide more certainty and conclusive proof. To the extent that the hiring relationship qualifies as a publishing contract, article 381 of the Swiss Code of Obligations provides that copyright is assigned by law from the author to the publisher to the extent and for the duration necessary to carry out the publishing contract, unless otherwise agreed between the parties.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes, a copyrighted work can be owned by more than one person if multiple authors (natural persons or legal entities) have jointly contributed to one creation (see question 22). Alternatively, this may also come about if copyright has been assigned to multiple persons or in the event of a legal succession (eg, inheritance of copyright to multiple heirs).

Transfer of rights

May rights be transferred?

Yes, copyright is transferable by assignment and by legal succession. Copyrights can also only be transferred partially. However, there is a ‘core fragment’ of moral rights, which always remains with the author. Moral rights are inextricably connected to an author’s personality (ie, the right to be named as an author; the right to prohibit any distortion of his or her work prejudicial or harmful to his or her personality; and the right to decide on the manner and date of the first publication of his or her work (see question 13)).

Licensing

May rights be licensed?

Yes, copyright can be licensed. There are no specific rules or provisions on licensing in the FACN or in the Swiss Code of Obligations generally applicable to contracts. Copyright licence agreements are considered ‘contracts’ (ie, contracts not governed under a specific statute). Therefore, provisions on various statutory contract types under the Swiss Code of Obligations will apply in a fragmented manner or by analogy. Copyright licences can be exclusive, sole, non-exclusive, complete or partial. The parties to a copyright licence are free to determine the scope they wish to license. Copyright licences are not subject to any prescribed form. However, a written agreement will provide conclusive proof for the existence of a copyright licence.

The NFACN provides for extended collective licences (article 43a, NFACN). Collective societies may be authorised to enter into licensing agreements with users on the mass use of published and copyrighted works in areas that are not subject to collective management by law. Rights holders may, however, object to the use of their works through this channel (and may ask for the exclusion of their rights managed through an extended collective licence (ie, opt out)).

Are there compulsory licences? What are they?

There is one compulsory licence for the manufacturing of phonograms (audio recordings; article 23, FACN). The compulsory licence grants phonogram producers with a place of business in Switzerland the right to claim a licence for recorded musical works that have been offered for sale, transferred or otherwise distributed with the consent of an author in Switzerland or abroad. Unlike the statutory licences (see questions 5 and 9), the compulsory licence does not permit the use of a copyrighted work against the payment of a statutory royalty under a tariff established by a collective society. Instead, the authors or rights holders are required to enter into individual licence agreements with the respective user.

A limited number of restrictions to copyright apply in the form of a right to make specific uses of a copyrighted work under specific circumstances free of charge or against the payment of royalties under a statutory licence (see question 9). Technically, these restrictions are not compulsory licences. Yet factually, their effect can amount to the same.

Are licences administered by performing rights societies? How?

Swissperform, the collective society for performing rights, administers licences for performing artists. It enforces the mentioned neighbouring rights of performing artists (see question 12) and collects the payment of royalties for the grant of such rights. The enforcement of these rights may be reserved to the collective society by law or may be entrusted to it on a voluntary basis by the performing artists by means of a contract (a ‘rights administration agreement’).

Termination

Is there any provision for the termination of transfers of rights?

No. There are no provisions on the termination of transfers of rights (in the sense that transfers are terminated by law and copyright is thereby re-assigned to the author).

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

No, there is no government agency in charge of recording copyright transfers in Switzerland. As copyright is not registrable in Switzerland, transfers or similar transactions related to copyright is not registered publicly either.