5a.1.1 Exploitation through collecting societies

good to know
faq

The author should, ideally, receive an income from creating their work. Therefore, when a third party uses the author’s work, this third party should pay remuneration to the author. However, in reality, an author cannot demand payment of remuneration every time due to mass use of works (e.g. copying, downloading, etc.); instead, this is done via collective exploitation by the collecting societies) (e.g. Art. 20 para. 4 CopA). Collecting societies take over the exploitation of authors’ works on their behalf, if requested, and demand remuneration for these authors.

GOOD TO KNOW

Collecting societies – collective exploitation – joint tariffs (JT)

Collecting societies are associations of owners of original and derivative copyrights (authors, publishers and claimants of related rights, etc.) which protect the individual rights to exploit for the affiliated authors and owners of rights. Therefore, collecting societies conclude rights administration agreements (example contract) with which authors or owners of rights transfer certain rights to assert claims vis-à-vis a third party to the collecting societies. Furthermore, collecting societies conclude licence agreements with the users of works which regulate the type of use and the corresponding remuneration.

In cases where the owner of rights cannot undertake an individual exploitation due to the large amount of uses and where the author is not actually permitted to undertake an individual exploitation pursuant to statutory licences, collective exploitation will be provided by the collecting societies. In this case, authors and owners of rights do not conclude any rights administration agreements with the collecting societies. The protection of their rights already results from the law. Therefore, the collecting societies do not need to negotiate individual licence agreements with individual users to this end, but will negotiate collective regulations, i.e. tariffs, (Art. 46 CopA) with user associations. The tariffs must be set in accordance with defined regulations and with the principle of equal treatment (Art. 45 para. 2 CopA). The tariffs regulate, similar to the licence agreements, the level of the remuneration and the extent of the permitted use. If several collecting societies are affected by particular uses, they must draw up ‘joint tariffs’ for the use of the same works, and designate a joint office for payment (Art. 47 CopA). The collecting societies must distribute the collected money to their members pursuant to a distribution regulation, and, in the process, take the income for the individual works and presentations into consideration (Art. 49 CopA).

There are five collecting societies in Switzerland: ProLitteris – for the exploitation of text and image works, SUISA – for the exploitation of musical works (excluding theatrical works), SUISSIMAGE – for film works, Société Suisse des Auteurs (SSA) – for the exploitation of stage and audiovisual works, and SWISSPERFORM – for the exploitation of neighbouring rights. These collecting societies exploit, among others, rights which are subject to federal supervision (Art. 40 CopA) and requires authorisation from the Swiss Federal Institute of Intellectual Property (Art. 41 et seq. CopA).

FAQ

5.1.1-1 What does ‘collective exploitation’ mean?

Collective exploitation exists when the exploitation is collectively undertaken by collecting societies rather than individually exploited by the author or the owner of rights. On the one hand, all authors and owners of rights are protected collectively, while, on the other hand, the remuneration is gathered collectively. An example of collective exploitation is exploitation for copying within the scope of private use (Art. 19 in conjunction with Art. 20 CopA substantiated by Joint Tariffs 8 and 9).