On 24 May 2023, the Federal Council opened the consultation process on the introduction of a Swiss Press Publisher's Right. The consultation process for the introduction of such a right into the Swiss Copyright Act (CopA) will last until 15 September 2023.
The Federal Council proposes that large information society service providers should pay media companies for the use of snippets (small pieces of journalistic articles). For example, if a major search engine shows snippets from a newspaper article in its search results, the online service should pay a remuneration for this in the future.
The draft law provides for the following main elements of the Swiss Press Publisher's Right (Article 37a of the CopA consultation draft):
- Information society services providers that make parts of journalistic publications commercially available to the public are obliged to pay media companies a remuneration.
- Only service providers with an average number of users of at least 10% of the Swiss population per year should be subject to the remuneration (Article 37a paragraph 4 of the CopA consultation draft). Presumably, services such as Google, LinkedIn, TikTok, Twitter, Xing and YouTube will be obliged to pay a remuneration under the new regulation.
- Nonprofit companies such as Wikipedia or libraries will not be charged.
- The obligation to pay a remuneration applies regardless of whether the snippet fulfills the originality criterion (Article 37a paragraph 1 of the CopA consultation draft), i.e., regardless of whether the snippet enjoys copyright protection.
- The remuneration should be collected through a collecting society.
- The collecting society should represent the interests of the media companies and media professionals collectively and negotiate the amount and modalities of the remuneration with the user associations.
- Therefore, it is envisaged that the collecting societies will work out a tariff with the user associations, which must be approved by the Federal Arbitration Commission for the Exploitation of Copyright and Neighboring Rights.
- Media companies that work according to recognized rules of journalistic practice are entitled to the remuneration (e.g., Journalists' Code of the Swiss Press Council, Article 37a paragraph 1 of the CopA consultation draft).
- The authors of journalistic works contained in journalistic publications should receive an appropriate share of the remuneration.
In contrast to the EU regulation, which is designed as an exclusive right, the proposed Swiss solution does not create an exclusive right, but a mere remuneration claim. It will not be possible to prohibit the use of snippets. The Swiss legislator wanted to prevent discussions about the length of snippets, as they have taken place in the EU.
Making available of snippets by users
The Federal Council has left open the question of whether the sharing of snippets by users on social media should also lead to a remuneration obligation for providers. Under the draft law, the Federal Council makes two alternative proposals in this regard. One option provides for a remuneration claim even if users of the social media platforms make the snippets available, the other option only provides for remuneration if the provider itself makes the snippets available. In any case, the mere setting hyperlinks remains free of charge.
Duration of protection
The claim to remuneration for the use of journalistic publications arises upon publication and expires after two years. The term of protection thus corresponds to that in the EU.
Reservation of counter rights
A media company without a registered office in Switzerland will be entitled to remuneration if, in the country in which it has its registered office, media companies with a registered office in Switzerland also have a financial claim for uses comparable to the Swiss Press Publisher's Right.