Replay TV is a recording service that allows its users to rewatch TV programmes. Under Swiss copyright law, which sets out a number of lawful ways to use copyrighted works, this service constitutes private use and is covered by the respective statute of limitations. However, as users receive TV programmes via a third party (ie, Replay TV service providers), a statutory copyright levy is imposed on Replay TV.

Unsurprisingly, TV stations are unhappy with this arrangement and have attempted to contest it before the courts. Further, TV stations are allegedly engaged in lobbying efforts to change the existing legislation.

The principal claims of TV stations are that:

  • Replay TV does not constitute private use (or does so only to a limited extent); and
  • TV station fees are not statutory levies and should be negotiated between TV stations and Replay TV service providers.

At least, TV stations wish to gain control over how the statutory levy amounts are fixed.

A recent Federal Administrative Court decision(1) has provided further clarity on the matter.

The court stated that the statutory levy on Replay TV is charged by a collective management organisation and defined in a tariff, which is negotiated between the rights holders and users of replay TV services. Once the tariff has been agreed by both parties, it is approved by the competent authority. If the parties fail to reach an agreement, the same authority decides the tariff on their behalf.

Generally, individual rights holders are not part of the negotiations and can neither sue the competent authority nor appeal its decision regarding the tariff. However, the Supreme Court recently declared that, under special circumstances, individual rights holders might have standing to sue.

TV stations have tried and failed to enter the proceedings on the new tariffs affecting Replay TV. Despite the Supreme Court's judgment, the Federal Administrative Court held that:

  • no special circumstances applied to Replay TV; and
  • TV stations have no standing to sue.

For further information on this topic please contact Mathis Berger at Nater Dallafior Rechtsanwälte AG by telephone (+41 44 250 45 30) or email (berger@naterdallafior.ch). The Nater Dallafior Rechtsanwälte AG website can be accessed at www.naterdallafior.ch.

Endnotes

(1) Available here (German version).

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