Inheritance
Copyrights may also be inherited (Art. 16 para. 1 CopA). The heirs can assert their claims after the death of an author.
3.4 Other owners of rights
Inheritance
Copyrights may also be inherited (Art. 16 para. 1 CopA). The heirs can assert their claims after the death of an author.
Authors can assign all or part of their copyrights to another person. This principle is enshrined in Art. 16 para. 1 CopA. However, as simple as this may sound, certain restrictions apply to the assignment of rights:
Copyright grants the author the moral rights of the author as well as the property right. Only the property right may be assigned; the moral rights of the author always belong to the author and can therefore not be assigned.
The property right is the exclusive right of the author to decide whether, when and how the work is used (Art. 10 para. 1 CopA). This includes all the examples of the uses of a work listed in Art. 10 para. 2 CopA, in particular the right of reproduction and the right to distribute.
Authors can therefore assign these rights. However, the person who acquires the right does not become the author themselves. They are only owners of rights and acquire what is known as the derivative copyright.
Nevertheless, the owner of rights acquires this right as an exclusive right. They can therefore assert the acquired right against anyone, and defend themselves against infringements of their copyright by third parties; they can also assign the acquired right to others or grant licences.
It is important to know that this exclusive effect also applies to the original author. This means that they may no longer exercise the rights that they assigned to another person.
BUT – authors remain the authors even after assigning their rights; this fact is particularly important for the right of quotation. Otherwise, it would be impossible to quote authors, even though this is prescribed by law. Authors can therefore continue to assert their moral rights as the author.
For example, the author who assigned their rights of reproduction and distribution to the publishing house in the above case can continue to use their moral right to be recognised as the author (Art. 9 CopA) and decide for themselves whether and how they want their name to appear on their work.
Authors who do not wish to give up their legal position can sign a contract that only grants the other party the right to use (licences) their work. In this case, no copyrights are assigned. Other parties simply obtain the right to certain possible uses of the work without the authors having to give up any of their legal claims to their work (exception: exclusive licence).
Copyright in its form as property right can be assigned in many forms. Although it is possible to assign the full property right, authors can also assign only part of their property right. For example, the possible uses can be restricted (e.g. the right to reproduce a novel is permitted, but reading the novel aloud on the radio is forbidden); the possible uses may be limited with regard to place and time of use (e.g. a work may only be distributed within Switzerland or distributed for a specific period only). Authors can even assign copyrights if they have already given rights of use or licences to other persons, provided that no exclusive rights of use were granted.
A distinction must be made between the assignment in the rights to the work and the acquisition of the work itself or a copy of the work. The acquisition of ownership does not include the author’s right to decide whether, when and how the work is used; not even if it is the original work (Art. 16 para. 3 CopA).
For example: a painter gives a painting to their friend, who is now the new owner of the work. The friend can use the painting as an object (e.g. hang it on the wall in their flat). They can also sell or give this painting to someone else or distribute it in another way (Art. 12 para. 1 CopA). However, this does not mean that the friend has any copyrights in the painting. For example, without the explicit consent of the painter, the friend may not make any copies of the painting (except for private use), make any changes to the painting or insert it into another work.
GOOD TO KNOW
FAQ
3.4-1 Can authors assign their right to decide whether, when, how and under what author’s designation their work is published for the first time (right of first publication) pursuant to Art. 9 para. 2 CopA to a publishing house?
No, the right of first publication is a moral right of the author and cannot be assigned. A publishing house may ‘help’ an author to publish a work, but in practice authors are required to assign their rights of reproduction and publication to the publishing house.
3.4-2 What must authors consider when assigning their copyrights?
Authors must decide beforehand (before they sign any contract regarding the assignment of rights) if they wish to give up any right(s) and assign their legal position to other persons or if they only wish to give/assign the permission to use the work for specific purposes under specific conditions (right of use).
3.4-3 What must users always consider?
Users must find out who the owner of rights is. The owner of rights can also be someone other than the original author. Users who wish to use a protected work must obtain the consent of the owner of rights, unless usage is covered by the limiting provisions. If the latter applies, the work can also be used without consent. Users must also be aware that the author might not have assigned all the rights. In this case, consent for the intended use of the work must be obtained not only from the owner of rights but possibly also from the author.
3.4-4 A library receives an archive of a painter from his heirs. The archive includes the painter’s works and those created by a friend. As the owner of the archive, can the library use all the works for an exhibition without any further ado?
No, for several reasons: the heirs still own the copyrights in the artist’s works as the copyrights were not assigned with the ownership acquired as a gift. If the library wants to use the works for an exhibition, it needs the consent of the heirs. The copyrights in the works of the artist’s friends were also not assigned to the library with the gift. To use these works, the library needs the consent of these authors (and/or other owners of rights, e.g. their heirs).