Action for declaratory judgement (Art. 61 CopA) aims to establish the existence or non-existence of a right or legal relationship (cf. Decision of the Swiss Federal Tribunal BGE 129 III 295) and establish whether the defendant’s conduct was illegal (cf. BGE 93 II 50).
The following conditions must be met before an action for declaratory judgement can be brought:
● Doubt regarding the legal situation between two parties
● A court ruling is necessary to rule out that doubt
● The existence of that doubt hinders the affected person in exercising their rights.
The claimant must have an immediate interest in the declaratory judgement (BGE 126 III 315).
Persons who might have such an interest could be:
This may be a natural or legal person (e.g. a company).
An action for declaratory judgement can be brought at any time. However, waiting can create arguments for the opposing party to use, who may consequently attempt to demonstrate a tacit acceptance of the infringement in question.
An action for declaratory judgement is usually secondary to any other actions (BGE 104 II 124). There is no interest in a declaratory judgement in the case whether an immediately initiated action for performance, for prohibition or to modify a legal relationship is necessary, which would directly assert the claimant’s right or the performance of an obligation.
This means the actions mentioned hereafter will usually take priority over an action for declaratory judgement.
An action for declaratory judgement aims to establish whether a right exists when an illegal act has been reported (e.g. the failure to respect a copyright).
When a rights holder suspects that their rights have been infringed, they can bring an action for declaratory judgement to secure the evidence needed to claim for damages.
If no evidence is given, a court will not be able to validate or refute a claim.
There must be doubt regarding the legal situation between the parties which hinders the affected person in exercising their rights. If this is the case, a court ruling can clarify the situation. The aforementioned doubt must also be unreasonable for the affected person, and they must not be allowed to file an action for performance (Art. 62 CopA).
First and foremost, the author, other owners of the copyright (e.g. the editor or exclusive licence holder if the licence agreement does not exclude this) and anyone in general who can demonstrate an interest which merits protection by declaratory judgement. This may be a natural or legal person (e.g. a company).
An action for declaratory judgement can be brought at any time. However, waiting can create arguments for the opposing party to use, who may consequently attempt to demonstrate tacit acceptance of the infringement in question.
To say that an action for declaratory judgement is subsidiary to other more specific actions means that the victim of a copyright infringement may request the court to simply declare the infringement only if it cannot assert more specific claims against the person who has committed the infringement. For example, if an action for remedy of the infringement (Art. 62 Para. 1 (b) CopA) is brought, that interest takes priority over an action simply seeking a judgement to declare the existence of an infringement.