1.2 Use in Switzerland

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Also Switzerland has its own national international private law, the IPLA (Federal Act of 18 December 1987 on International Private Law). This contains specific provisions on intellectual property rights. Important for copyright are Art. 110 IPLA and Art. 116 et seq., especially Art. 122 IPLA.

Similarly, Article 110 IPLA leads to the application of Swiss law where protected works are used within Switzerland. However Swiss law is not applicable if the protected work is used abroad.

Article 116 et seq. ILPA are applicable, if contracts with international aspects have been concluded (e.g. foreign contractual party, contractual service has to be performed abroad). In this case the co-contracting parties may determine the applicable law (so-called choice of law; for assignments of copyrights by contract Art. 122 IPLA).

In the absence of any such stipulation regulations are provided in Art. 116 et. seq. For contracts in the copyright domain this will be specifically settled in Art. 122.2 ILPA. In the absence of a choice of law Art. 122.1 stipulates the application of the law of the country of residence of the person granting the intellectual property rights (more in section 1.4).

GOOD TO KNOW

Copyright on the work Le Petit Prince by Antoine de Saint-Exupéry. The complexity of the different national copyright laws on an international level

What’s the answer to the question “Is the famous story The Little Prince by Saint-Exupéry (still) protected by copyright”? Yes, no, maybe…

Antoine de Saint-Exupéry was a French writer and pioneering aviator born in 1900 and who died while on a mission in 1944 during the ll World War. He wrote the story Le Petit Prince which was first published in English and French in the United States in 1943, than in France in 1946. Its first Italian translation was published in 1949.

In the United States this work will enter into public domain in 2039, as it is one of those cases whose copyright term lasts for 95 years from the year of first publication. 

In Europe and in Switzerland as well, another principle is in force: a work is generally protected by copyright until the 70th year from the author’s death.

Apart of that, we must consider all different particular national laws that ought to be applied: 

In France, before implementing the European rules, a work entered public domain the 51st year after the author’s death. Moreover, there is a special law that applies to works published during the two World Wars, plus another special law which is a tribute to the soldiers “Mort pour la France” authors of works: these acts extend the copyright term. Another French rule makes it even more complicated, because France adapted its legislation to the European one, which covers a work for 70 years after the author’s death, but with an exception for the works that were under the 50 years from the author’s death term and already benefitting from any extension. 

Consequently, considering all of these principles, exceptions and exceptions of exceptions, Le Petit Prince is protected by French copyright up till 2033, which is the sum total of the author’s death (1944) + 50 years (copyright term at that time) + 8 years (extension for works published during World Wars) + 30 years (extension for death for one’s country).

The first Italian version of Il Piccolo Principe was published in 1949 and many other adaptations and translations after that. In Italy the Italian Copyright Act protects a work for 70 years after the author’s death, same as in Switzerland with its Federal Copyright Act.

But we must be careful with the translated version: usually, the translator gives his creative contribution when he translates a text, it’s a result of his intellectual creation, even if it comes from another work. A translated text is therefore a derivative work, protected by copyright as a work in its own right. 

Besides that, there is an international general principle (the Territoriality Principle, adopted by most countries) that should be taken into account: in cases where several national laws are involved, the law of that country, in which the protected work is used, applies.

In conclusion: how can I use in Switzerland Antoine de Saint-Exupéry’s story, whether the original French version, or the English or Italian translated version? 

–       The original Le Petit Prince, in Switzerland is public domain: I’m free to use it within Switzerland. But pay attention to internet: if I upload or write the French original version Le Petit Prince to my blog, I must not forget that if users in France have also access to it, I’m than violating the French Copyright legislation, as in France the content is still covered under Copyright so far. I would need to geoblock my blog. 

–       Concerning the English version The Little Prince translated by Katherin Woods in 1943 and the Italian version Il Piccolo Principe, they are protected by copyright all over, and thus, are not to be considered public domain.

Written by SM

Sources:

https://www.internazionale.it/opinione/francesca-spinelli/2015/01/31/il-piccolo-principe-nella-gabbia-del-copyright
https://en.wikipedia.org/wiki/Antoine_de_Saint-Exupéry
https://www.copyright.gov/circs/circ38b.pdf

FAQ

1.2-2 A Cambodian artist creates a sculpture to stand in front of the University of Lucerne. The university would like to replace the photo in its brochures with one that includes the sculpture. Should Cambodian or Swiss law apply in this situation?

As the work is being used in Switzerland, Article 110 of the IPLA indicates that Swiss law is applicable. The nationality of the artist is not a decisive factor here, because the IPLA and the Swiss Copyright Act do not distinguish between Swiss nationals and foreign nationals and Swiss as well as foreign authors may claim the same protection.

1.2-3 A physics teacher wants to use some third-party content (e.g. a chart) which is probably protected by copyright and decides to use it in the lesson he is preparing. Which law applies to the use of this content?

To answer this question, we need to ask where the content is being used. If the content is being used in Switzerland, Swiss copyright law will apply. This is also the case if the teacher includes the third-party content in a PowerPoint presentation, which he prints out and hands out to his students and which he only does in Switzerland. The teacher benefits from the limiting provisions of copyright – in this case the private use for educational purposes, Art. 19.1 CopA – and he may use the content under certain conditions without consent of the author.

1.2-4 Can the authorisation for the use of the content without consent of the author by the limiting provision of private use for educational purposes justify using a work abroad?

The exceptions stipulated in Article 19 of the Swiss Copyright Act, that means the exception for educational purposes, do not apply outside Switzerland. The teacher’s use of copyrighted content abroad is not covered by Swiss law, but by the applicable foreign law. This means we need to be careful as the conditions for the use of a work provided for in foreign law could turn out to be more stringent.