According to Art. 67 CopA, on the complaint of the person whose rights have been infringed, any person who wilfully and unlawfully, which means without authorisation of the owner of rights or without a legal exception (limiting provision) like private use in accordance with Art. 19 CopA or the right to quote in accordance with Art. 25 CopA, commits any of the following acts is liable to a custodial sentence not exceeding one year or to a monetary penalty:
- uses a work under a false designation or a designation that differs from that decided by the author (Art. 67 Para.1 (a) CopA);
A use of this kind corresponds to an infringement of the author’s exclusive right to decide under what author’s designation their own work is published (right of recognition of authorship, Art. 9 Para. 1 CopA)
A use of this kind corresponds to an infringement of the author’s exclusive right to decide whether, when and how their own work is published (right of first publication, Art. 9 Para. 2 CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to decide whether, when and how their own work may be altered (protection of a work’s integrity, Art. 11 Para. 1 (a) CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to decide whether, when and how the work may be used to create a derivative work or may be included in a derivative work (derivative works, Art. 11 Para. 1(b) CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to produce copies of the work, such as printed matter, phonograms, audiovisual fixations or data carriers (right of reproduction, Art. 10 Para. 2 (a) CopA)
A use of this kind corresponds to the protections of the author’s exclusive right to offer, transfer or otherwise distribute copies of the work (right of distribution, Art. 10 Para. 2 (b) CopA)
- recites, performs or presents a work or makes a work perceptible somewhere else either directly or with the help of any kind of medium (Art. 67 Para. 1 (g) CopA);
A use of this kind corresponds to the protection of the author’s exclusive right to recite, perform or present a work, or make it perceptible somewhere other than the place it has been presented (right to make a work perceptible or available, Art. 10 Para. 2 (c) CopA).
- makes a work available through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them (Art. 67 Para. 1 (gbis) CopA);
A use of this kind corresponds to the protection of the author’s exclusive right to recite, perform or present a work, or make it perceptible somewhere else or make it available directly or through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them (on-demand services, Art. 10 Para. 2 (c) CopA)
- broadcasts a work by radio, television or similar means, including by wire, or retransmits a broadcast work by means of technical equipment, the operator of which is not the original broadcasting organisation Art. 67 Para. 1 (h) CopA);
A use of this kind corresponds to the protection of the author’s exclusive right to broadcast the work by radio, television or similar means, including by wire (right to broadcast, Art. 10 Para. 2 (d) CopA) and to retransmit works by means of technical equipment, the provider of which is not the original broadcasting organisation, in particular including by wire (right to retransmit, Art. 10 Para. 2 (e) CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to make works made available, broadcast and retransmitted perceptible (Right to make a work publicly perceptible, Art. 10 Para. 2 (f) CopA)
Furthermore, any person who wilfully and unlawfully commits any of the following acts will be criminally liable:
- refuses to notify the authority concerned of the origin and quantity of goods in their possession that have been unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial consumers (Art. 67 Para. 1 (k) CopA)
A use of this kind corresponds to the right of the author of a computer program to demand the exclusive rental right if this fulfils the characteristics of a work in accordance with Art. 2 CopA.
It is important to note that action against the criminal offences set out in Art. 67 Para. 1 CopA are only ever brought by the complaint of the person whose rights have been infringed, which means in particular that if the injured party does not act, the infringement will not be brought to court.
When a complaint is filed, the complainant also has the right to withdraw their complaint at a later stage, thereby terminating the criminal proceedings.
The criminal offences set out in Art. 67 Para. 1 CopA are only punishable offences if they were committed wilfully, in particular with intent. But dolus eventualis is sufficient. However, an offence committed negligently is not punishable. If before committing the act, the offender was expressly warned or cautioned regarding the copyright in question, it would be difficult to prove that their illegal conduct was not wilful (intent or dolus eventualis).
TO CONSIDER
Unlike civil actions in copyright disputes, where an offender who has committed copyright infringement can be held liable for a negligent act. Criminal offences in copyright are only punishable if they were committed wilfully. But dolus eventualis is sufficient. For example, if the offender had been warned that the use of a particular work was not permitted. Nevertheless, by using it, the offender accepts that they may infringe a copyright. This can be sufficient to claim dolus eventualis and the act will be punished by law.
Example: It has been indicated to a person that the use of a protected work is prohibited. If the person uses this work anyway he/she accepts a violation of the author’s copyrights. This is sufficient to consider this act as wilfully in the form of dolus eventualis and thereby as a criminal offence.
GOOD TO KNOW
According to a decision of the Swiss Federal Supreme Court, the existence of a commercial gain is dependent on “the time and resources that the offender dedicates to the criminal actions, the frequency of the acts within a given period of time, his anticipated or actual income and whether he committed the illegal activity as his profession, however incidental; the offender must have aimed to receive a relatively regular income, which represents a significant contribution to the financing of his way of life and has consequently become involved in crime to some extent. The offender must hope to gain a relatively regular income, which allows him to make significant contributions to the financing of his lifestyle and personal needs” (cf. BGE 129 Para. 4 253 – in French).
E.g. a person spending much time in the operation of a website offering illegal downloads of protected works and earn revenue with this illegal behavior, acts for commercial gain (BGE 6B_757/2010 fron 7.2.2011 – in German).Any person who has act for commercial gain shall be punished with a custodial sentence not exceeding five years or a monetary penalty.
The custodial sentence must be combined with a monetary penalty.
In general, violations of criminal provisions in copyright law will be prosecuted only by complaint by the injured party.
The right of the injured party to initiate a prosecution by bringing a complaint or to end the prosecution by revoking the complaint gives the parties an easier way to cease their dispute and find an agreement without judgement and without having long civil or/and criminal actions. After a well-prepared complaint, the offender will be asked to reach an agreement with the injured party on a civil law level to avoid a criminal conviction. It is often the case that the injured person will revoke the complaint after receiving reparation.
In contrast to bringing a complaint to initiate a prosecution, there are criminal acts which will be prosecuted ex officio. A complaint by the injured party or any other person is not necessary. If the prosecution authorities have knowledge of an illegal act, they have to initiate a prosecution. An explanation for that is the severity of those crimes which requires prosecution ex officio. E.g. all copyright infringements that are committed for commercial gain will be prosecuted ad officio (Art. 67 Para. 2 CopA, Art. 69 Para. 2 CopA, Art. 69a Para 2 CopA), although these provisions normally need a complaint by the injured party.
FAQ
A user cannot make a film black and white without the consent of the rights holder. That would be an infringement of the exclusive rights of the author (Art. 11 Para 1 CopA, Art. 10 Para. 1 (d) CopA). This act would lead to the risk of being taken to court for breaching Art. 67 Para. 1 (c) CopA, which carries a custodial sentence not exceeding one year or a monetary penalty.
This may also overlap with civil actions (e.g. an action for damages).
Copyright infringements under Art. 67 CopA can be subject to a custodial sentence not exceeding one year or a monetary penalty (payment of a fine).
A copyright infringement has been committed when someone who does not have authorisation from the rights holder and/or is not acting under a limiting provision:
- uses a work under a false designation or a designation that differs from that decided by the author;
- publishes a work;
- modifies a work;
- uses a work to create a derivative work;
- produces copies of a work in any manner;
- offers, transfers or otherwise distributes copies of a work;
- recites, performs or presents a work or makes a work perceptible somewhere else either directly or with the help of any kind of medium;
- makes a work available through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them;
- broadcasts a work by radio, television or similar means, including by wire, or retransmits a broadcast work by means of technical equipment, the operator of which is not the original broadcasting organisation;
- makes a work made available, a broadcast work or a retransmitted work, perceptible;
- refuses to notify the authority concerned of the origin and quantity of goods in their possession that have been unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial consumers;
- rents out a computer program.
It refers to the conduct of a person who has committed a copyright infringement whereby their intent to cause harm, whether directly or indirectly, is assumed. Direct intent describes the situation where the offender knows the consequences of their act will occur, and dolus eventualis refers to when the offender foresees the consequences of their act and commits it regardless, thereby accepting the possibility of those consequences occurring.
Actions against criminal offences are only ever brought following the complaint of the person whose rights have been infringed, which means if the injured party does not act, the infringement will not be prosecuted. The complainant also has the right to withdraw their complaint at a later stage, thereby terminating the criminal proceedings.
If the infringement was committed by more than one person, the complaint can be filed against each individual. However, if the claimant brings a complaint against one single person, all other participants in the offence are included in this and they can be prosecuted.
Yes, the owner of the rights can withdraw their complaint as long as the cantonal court of second instance has not issued its judgement (Art. 33 SCC). It is important to remember that, if the claimant withdraws a complaint against one of the defendants at a later stage, it will apply to all of the others. The withdrawal of a complaint is final and the complaint cannot be refiled.
It is in the offender’s interests to try to come to an agreement under civil law with the injured party so that the latter withdraws, or does not file a complaint against them. The objective is for the injured party, in exchange for monetary compensation, to agree not to commence criminal or civil proceedings or agree to withdraw its complaint if need be.
The right to file a complaint is subject to a time limit of three months (Art. 31 SCC) beginning from the date the owner of the rights became aware of the infringement. If the alleged offender cannot be identified, the claimant can file a complaint against an anonymous party in order to adhere to the time limit. The injured party must therefore act promptly as soon as they become aware of the circumstances surrounding the infringement against them.
The use of a protected work is illegal if the user is not the author of the work or an assignee of the copyright or if the use is not allowed by a limiting provision of the copyright or they do not have permission from the owner of the rights.
If the offender commits the infringement for commercial gain, they will be prosecuted ex officio (Art. 67 Para. 2, Art. 69 Para. 2 and Art. 69a Para. 2 CopA). The penalty is a custodial sentence not exceeding one year or a monetary penalty. Acts are only punishable if they were committed by a person who knew or, given the circumstances, should have known that they were committing, enabling, facilitating or concealing an infringement of copyright or a related right.
A person acts for commercial gain depending on “the time and resources he dedicates to the criminal actions, the frequency of the acts within a given period of time, his anticipated or actual income and whether he committed the illegal activity as his profession, however incidental; the offender must have aimed to receive a relatively regular income, which represents a significant contribution to the financing of his way of life and has consequently become involved in crime to some extent. The offender must hope to gain a relatively regular income, which allows him to make significant contributions to the financing of his lifestyle and personal needs” (cf. BGE 129 Para. 4 253 – in French).
The criminal offences mentioned in Art. 67 Para. 1 CopA are prosecuted ex officio if they were committed for commercial gain (Art. 67 Para 2 CopA), i.e. as soon as the prosecuting authority becomes aware of the offence and without waiting for the injured party to file a complaint. If the offender acted for commercial gain, their situation is effectively more serious, which justifies automatic prosecution.
