If pupils, apprentices, students, PhD students or other learners produce a creative work during their studies, they are the authors.
If the educational institutions also wish to have the copyrights in such works, they will need separate agreements with the authors. However, as pupils and students do not usually enter into contracts with educational institutions, the copyrights are not assigned by way of a contract. This means that third parties, including teachers, lecturers and other people giving lessons, always have to obtain the consent of the learner if they wish to use their work.
However, there are cases where learners also assign their copyrights to the educational institution under a contract or regulations, in which case no separate agreement is required. This applies, for example, to:
- Apprentices who assigned their copyrights under the apprenticeship contract
Apprentices and teaching operations conclude an apprenticeship contract (with the consent of the legal representative for minor apprentices). This apprenticeship contract can contain a provision regarding the assignment of copyrights. If it is not clear from the apprenticeship contract whether the copyrights were assigned, the principle of assignment limited to purpose must be applied to establish whether the assignment of the rights is required for the purpose of the contract.
- Study regulations which require the assignment of copyrights
The study regulations of a number of Swiss higher educational institutions state that the students grant the universities and universities of applied sciences copyrights in the work that they create during their study. One example is Art. 34 of the Academic Ordinance Governing Bachelor’s and Master’s Degree Programmes at the Lucerne University of Applied Sciences and Arts (FH Zentralschweiz) of 13 June 2014. The study regulations of the University of Applied Sciences and Arts Northwestern Switzerland (FHNW) specify, for example, that students are obliged to grant the rights to intellectual property acquired as part of their studies to the FHNW (cf. § 10 (j) of the Framework Regulations Governing the Bachelor and Master Degree Programmes at the University of Applied Sciences and Arts Northwestern Switzerland (FHNW) of 2 February 2015).
- Work created while doing research during an employment relationship between the researcher and the university
Students at universities (e.g. PhD students) can, for example, do work for chairs or projects, and have an employment relationship with the relevant educational institution. In this case, the assignment of copyrights is governed by the applicable regulations of the educational institution or the specific provisions of the employment contract.
- Projects funded by third parties
Works created as part of projects funded by third parties can sometimes be subject to the regulations of the sponsoring institutions on the assignment of copyrights. For example, Art. 44 of the Funding Regulations of the Swiss National Science Foundation states that although the rights in the research results belong to the authors, the authors have to define such rights with their employers and grant the other project members or employees suitable author rights.
TO CONSIDER
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When it comes to authorship, it is irrelevant whether the creator of a work is a minor or an adult. Minors can also be authors of a work and acquire original copyrights. This is not the same as an agreement to assign the copyrights, which by law is a legal transaction, i.e. a transaction for which legally binding declarations must be submitted. Such declarations can only be made by a person who is of age (i.e., who has the capacity to act, Art. 13 et seq. Swiss Civil Code, SCC). Minors have to be represented by their legal representatives (usually their parents) (Art. 19 para. 2 SCC) – this means the educational institution has to contact the parents if it wishes to obtain the copyrights of the learner; only the parents may give consent on behalf of their children.
FAQ
No, the school does not have any copyrights in the works as the pupils did not assign the copyrights to the school. The school must obtain separate declarations of consent from the pupils or from their parents if the pupils are not of age.
No, the university does not have any copyrights and thus also has no right to publish the work (reproduce it and make it available). According to its regulations, it would only have the right to do this if the students’ photos were taken ‘as part of their studies’. This is debatable in the current case. However, based on the purpose, it can be assumed that it only refers to works that are actually created as part of the students’ studies – if the photos taken on the Academic Day were coincidental and taken by chance as part of the students’ leisure activities, they have nothing to do with their studies. The university must obtain the students’ consent before it can publish the photos.
