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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.
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