No, this is not a human (intellectual) creation; instead, the image is created completely automatically without any human intervention.

No, the title lacks unique, individual character. There are no unusual, surprising terms or words or combinations of words. Other people could have also come up with this book title.

No, unfinished works (in this case, the introduction) can also be protected by copyright, even if the work is still in the initial stages. There is a certain creative, individual effort even in an introduction as the author explains their idea and motivation in their own words.Furthermore, only the PhD student may exploit her right to first publication pursuant to Art. 9 para. 2 CopA. This is the moral right of the author and can also not be transferred to the lecturer.

Yes, as long as the criteria specified in Art. 2 para. 1 CopA are fulfilled – the unfinished or incomplete work or the part of a work must therefore be a human intellectual creation with an individual character.

It depends: all data is metadata, which is only protected by copyright when it is considered to be an intellectual creative effort with an individual character pursuant to Art. 2 para. 1 CopA. Information about the author, title, edition and ISBN does not fall under this. On the other hand, the short description is an intellectual creative effort and is therefore protected by copyright; the lecturer would have to obtain the consent of the publishing house to use it.

Although this work is used in an educational context, the lecturer can invoke the limiting provision specified in Art. 19 para. 1 (b) CopA and does not require any consent to do so (private use for educational purposes). However, it is important that the lecturer only uses excerpts from the short descriptions for the literature list (not a complete copy) Art. 19 para. 1 (b) in conjunction with Art. 19 para 3 (a) CopA).Alternatively, the lecturer can also just issue a link list with links to the choice of literature in question or to the homepage of the publishing house instead of a literature list. Then the lecturer does not require the consent of the publishing house

A table of contents only falls under copyright when it can be viewed as an intellectual creation with sufficient individuality pursuant to Art. 2 para. 1 CopA. As the structure of the Copyright Act is followed in the legal commentary, it lacks the required individuality; the table of contents is not sufficiently unique and creative.The situation is different for the table of contents of the thesis. In this case, the contents of the work are structured in a form which does not exist, so the table of contents is considered to be a creative effort of the author.

Yes, as long as the draft is an intellectual creation with an individual character pursuant to Art. 2 para. 4 CopA.

The scientific idea is not protected by copyright. This includes statements, discoveries and results from states, events, research and other facts. These have no creative content of their own.

No, because biographical data is considered to be in the public domain as it was not creatively developed by the PhD student (for more information, see the decision of the Federal Supreme Court BGE 113 II 306).

Yes and no: the theory is not protected by copyright in its semantic content. It is a scientific statement and must be freely available to science. If the theory is designed creatively and individually in linguistic terms, it is at least protected in this linguistic form. If the theory is used word-for-word by a third party, the exception of quotation must be observed pursuant to Art. 25 CopA; otherwise, the presumption of a work exists (plagiarism).

Basically yes, when the textbook or parts of it have creative and individual elements. The form of representation in particular can be protected, i.e. the structure of the textbook, the way the contents are put together, the form of linguistic communication (e.g. through images, tables, diagrams, etc.), the language itself (e.g. for laypeople without specialist vocabulary or humorous descriptions).However, the (teaching) methods or the knowledge about them which is transmitted by the book are not protected because parts of already known, tested and researched matter are summarised for the purpose of knowledge transfer.

No, only when the developed formulas, regulations or algorithms are only rewritten exactly. Then there is no space for any creativeness. However, if they are recorded in specially thought up plans, tables, images, text descriptions, etc., they can be protected works if they are sufficiently original and individual.

Yes, but only with the permission of the affected owners of rights. Depending on the case, these are the author or the publishing house that holds the rights to the work, the record company that holds the rights to the recording, the phonogram company, any co-composers, etc.

As a derivative work, the remix itself enjoys individual copyright protection pursuant to (Art. 3 CopA) if it is an intellectual creation with an individual character and is perceptible to the senses pursuant to Art. 2 para. 1 CopA.

Basically, it actually requires the consent of the owner of rights of the original music title (composer, record and phonogram company, etc.). Sound sequences or melodies can also be copyright protected parts of musical compositions when they fulfil the conditions specified in Art. 2 para. 1 CopA (intellectual creations with an individual character and perceptible to the senses). This may regularly be the case during samplings because the used melodies or sound sequences from musical compositions are typically characteristic of the requisite piece, so that everyone recognises it in the sampling.

However: in a decision dated 31.5.2016 (Az. 1 BvR 1585/13), the German Federal Supreme Court permitted sampling without the specific consent of the author for reasons of constitutionally specified artistic freedom.

In the case of samples manufactured in Switzerland, the consent of the owner of rights should nevertheless be obtained as a precaution.

Yes, mobile phone ring tones can enjoy copyright protection as they show sufficient individuality.

No, consent is required. The logo of a university is basically protected by copyright (and also by trademark law), so it cannot just be used without further ado. The university is the owner of rights for the logo and must therefore give its consent. However, many universities have their own regulations or guidelines which specify how the logos can be used, and by whom. For example, the University of Basel specifies that the university logo may only be used by units and employees of the University of Basel; however, people not connected to the university must obtain consent at the corresponding office of the university (”logos & templates” of the University of Basel). If employees of the University of Basel were involved in the above-mentioned case, they would be permitted to use this logo for their project page; the consent of the university is given as a result of the afore-mentioned regulation.

It depends whether the design of the cover can be seen as a copyright protected work; i.e. whether it is an intellectual creation with an individual character. You can usually affirm this in the case of illustrations, paintings, creative photos and designs (forms, colours, patterns) if they show the required individuality. Monochromatic and/or simply designed covers (i.e. textbooks or scientific literature) are more difficult to evaluate. Careful checks must be carried out here to determine whether the required individuality exists and if the cover nonetheless stands out from others in terms of its design and creativity. Even if the cover does not enjoy copyright protection from this time onwards, a logo or lettering of a publishing house depicted on it can potentially be protected.

In the case of book covers, it must also be kept in mind that illustrated symbols or logos or lettering can fall under trademark law.

Basically, three-dimensional representations with scientific or technical content are protected pursuant to Art. 2 para. 2 (d) CopA. However, they must also be creative works with an individual character. When all criteria for the creation of the model are specified by the university lecturer, as in this case, then the personal creativity or the individuality of the students is questionable. Nevertheless, lower benchmarks must be set – even when there is limited creative leeway, small details which really stand out from the rest can give products sufficient individual character.

Here it is important to make a distinction – the individual pieces of geographical data are not protected, even if they fall under the work category “works with scientific content” (Art. 2 para. 2 (d) CopA) at first glance. During the compilation of the geographical data, the required individuality is actually missing because it is based on scientific findings.However, the database is protected as a collection pursuant to Art. 4 CopA. Due to its structure and its depiction with interactive elements, it is considered to be sufficiently creative and original.

Yes (cf. also Müller/Örtli-Cherpillod, URG, 2nd edition, 2012, Art. 2 N. 55).

Only under certain conditions. Pursuant to the law, every publication of photographs of people is unlawful (Art. 28 SCC, Art. 13 FADP), except when one of the following three exceptions exists:

• the photographed person has given their consent to the image;
• there is a legal justification for the image, or
• there is an overriding private or public interest in the image. Public interest can only be determined by weighing up the interests at stake. In the process, the mutual interests are contrasted – on the one side, the interest of the photographed person in protecting their personality and their right to determine themselves when and where they are pictured, and on the other hand, the interest of the public in their person. These two interests must be weighed up against each other.

The weighing up of interests plays a big part in practice. In this case, it is necessary to ask how important the person is for the public. The more important the person is for the public, the less of a requirement there is to gain their consent. Here you can take note of the following:

• If they are extremely important people of contemporary history (i.e. people who work entirely in the public arena, e.g. the pope, the president of the USA, world-renowned artists and musicians, etc.), you are permitted to publish photographs of them without their consent.
• If they are public people (of contemporary history) who are only the focus of public attention for a limited time, their photographs may also be published during the period of their fame without consent.
• If they are “normal”, non-public people (e.g. the neighbour, an employee, a pedestrian, etc.), then their consent is always required

However, if in doubt, it is always advisable to obtain consent.

When publishing photographs, the copyright of the photographer must always also be considered.

No, unless the students give their consent to this.

It depends on how “important” the person is to the public:

• Yes, if the person in question is a “normal”, non-public person (e.g. a student, employee, etc.). In this case, it is illegal to take pictures of the person without their consent. The person can defend themselves against being “photographed”, in particular by demanding the deletion or removal of the photos (e.g. from the university’s homepage) and by invoking the data protection law on photographing a person. Photographs in which a person can be recognised are one example of sensitive data on their person (Art. 3 FADP). Pursuant to the Federal Act on Data Protection, every dealing, in particular also the creation of data, is unlawful, unless there is consent, a higher private or public interest or a legal justification for it (Art. 13 FADP).

• Generally not, when the person is a public personality, at least for a limited time (e.g. rector, personality from business, politician). A person who works in the public arena must accept “being photographed” if it is in connection with their fame and the event.

If a portrait photograph is an intellectual creation i.e. was taken by a person (and not in an automatic photo booth) and has an individual character, i.e. the photographer has not simply snapped the person in the portrait in any particular way but rather with sufficient creative means and leeway (choice of lens, filter, moment of shooting the image, etc.), it is considered to be a protected work. Simply said, you can ask whether another person in the same situation would have taken the same or a very similar picture. In this case, you would have to deny that it has copyright character.

In case of doubt, it is advisable to assume that the work in question is protected by copyright.

UPDATE 2020: As a result of the new Swiss Copyright Act, a photographic portrait has to be considered as a protected work just because it is an intellectual creation, that means, there was a human being that snapped the shot, even if that photograph doesn’t have individual character. 

Take the warning seriously. However, do not sign any declarations to cease without further explanation, or pay any contractual penalty or agree to a settlement. Check firstly whether the accusation of an infringement of copyright is even legitimate. In each case, it is a good idea to seek legal advice.

The question has not yet been conclusively settled in Switzerland. Therefore, you first need to assume that a “third-party link” is unlawful without the consent of the author or the owner of rights. In the EU, on the other hand, this is permitted under particular conditions (ECJ, Judgement dated 21.10.2014, C-348/13). Here it is argued that a YouTube user (holder of the copyright) usually uploads their video to YouTube with the intention of making the film freely available to the public domain. When a third party then makes this YouTube film available on another website or in a social network, it can literally be viewed by a wider public. However, if and insofar as this work is freely available on YouTube, it must be assumed that the owner of the copyright has considered the likelihood of it being replayed for all Internet users as the public.

As Gottfried Keller’s date of death is known, his work is protected for up to 70 years after his death (Art. 29 Para. 2 CopA); this means his work was protected until 1960. As the term of protection does not take the exact day of the death of the author as its point of reference, but rather the effective date of 31 December of the year of their death (Art. 32 CopA), namely 31 December 1890 in the case of Gottfried Keller, his work was protected until 31 December 1960. Therefore, Keller’s work has been in the public domain since 1 January 1961.

The copyright term of protection is only calculated on the basis of the date of death of the original author and not on that of the owner of rights to whom the copyright was transferred.

As it usually consists of several works (articles, images, etc.) which fulfil the conditions of a copyright-protected work based on the selection of the work contained therein or their special arrangement (Art. 2 Para. 1 in conjunction with Art. 4 Para. 1 CopA), a newspaper is an independently protected work (collective work Art. 4 CopA). The works contained in the newspaper are also protected irrespective of whether they in turn fulfil the requirements of Art. 2 Para. 1 CopA (Art. 4 Para. 1 CopA). Therefore, it is important to differentiate between the newspaper as a whole item and the articles and images contained therein when answering the question of the term of protection.

For the term of protection of the newspaper: The author of a collective work is mandatorily a natural person (original author Art. 6 CopA) who can certainly also transfer their rights to a publisher that usually has a legal personality. However, the term of protection of a work is principally calculated on the basis of the date of death of its original author (Art. 29 et seq. CopA). Therefore, the copyright protection of the newspaper expires 70 years after the death of the original editor. As the possible owner of rights of the newspaper, the publisher is certainly not left unprotected; it is protected by the Federal Act on Unfair Competition (UCA). Art. 5 UCA protects the newspaper publisher insofar as that the person who takes over or exploits the reproduction of a market-ready work results (= the newspaper) of another person without reasonable own expense acts unfairly and must reckon with sanctions (Art. 9 et seq. UCA).

For the protection of the individual article in the newspaper: In the case of individual articles in the newspaper, the term of protection is also measured on the basis of the date of death of the respective original author, – usually 70 years after their death (Art. 29 Para. 2 CopA) –, irrespective of whether they had transferred the rights in their work to the publisher, or not.

Caution is advised here. The author principally has the exclusive right to put the work online and must give their consent. However, a newspaper can be digitised and put online without the author’s consent if the copyrights in the newspaper have expired. This is the case if the original author, the editor of the newspaper, has been dead for more than 70 years. It does not matter from a copyright perspective whether the publisher as a legal person has been assigned the copyrights by the author or has become the author’s legal successor through inheritance. Even if the newspaper has not appeared for more than 50 years, you may not know whether the editor has been deceased for more than 70 years. Therefore, you should advise the library not to copy the newspaper and put it online.

Authors who wish to assign all or part of their rights to third parties must sign a contract. The contract should set out the exact content and scope of the assignment of rights, because only the rights that were agreed are assigned. For reasons of clarity and proof, authors should always conclude a written contract (signed by both parties).

No, the publishing contract is governed by Art. 380 et seq. SCC.

When publishing a book, an anthology or a monograph, the author may not publish the work elsewhere, as long as the editions to which the publisher is entitled have not yet been exhausted (art. 382 para. 1 CO) This can be a problem if a publication should not only be published by a publishing house but also be made available as open access. The publishing house must then give its consent to make the work available as open access.
When publishing a paper or a contribution to collections, there is an exception to the general rule, permitting the re-publication as open access after 3 months from its first publication. (art. 382 para. 3 CO).

Often publishing houses or collective rights management organisations grant licences rather than the author. Third parties are also entitled to grant licences if they have been authorised to do so. To this end, the author must have assigned or granted them the necessary rights.

Licences are generally granted under a contractual agreement (licence agreement) between the licensor (author or an owner of rights) and the user (licensee). The contract determines the rights of use and their scope granted to the licensee by the licensor. Basically, the licensor grants the licensee a manufacturing or distribution licence and/or a licence for use. The usage options can also be restricted; for example, by number (e.g. only a limited number of performances), by time (e.g. a film may only be shown in a cinema for a limited period) or by area (cf. Hilty, Urheberrecht, 2011, 267 et seq.).

No, pursuant to Art. 9 para. 3 CopA a work is only considered to have been published when it is made available to a larger number of people outside the private circle of the author. The study group is a group of students that are closely connected to each other in their field of study. The student can still ‘control‘ this group of people. The essay has therefore not been made available to a larger number of people (Art. 19 para. 1 (a) CopA) and has thus not been published.

This question can unfortunately not be answered with a clear ‘yes’ or ‘no’. According to current trends, one probably has to assume that it was published for the first time as the student makes her homework available to a larger group of people. Everybody should know by now that Facebook users have virtually no control over the sharing of their posts. Even if the student only makes her homework available to a private circle (e.g. a selected group of Facebook friends), there is no guarantee that the Facebook friends in question will not share the homework with other people who are not known to the student.

The doctoral student – only the author has the right to decide whether, when, how and under what author’s designation the work is published for the first time. She cannot assign the right of initial publication to the publishing house, as this is her non-assignable moral right. The publishing house ‘helps’ the doctoral student with the publication in that the doctoral student agrees in a contract with the publishing house to give her dissertation to the publishing house for reproduction and distribution.

No, a work that has been published cannot be revoked.

Yes. Where the source indicates the author’s designation, the author’s name must also be cited, Art. 25 para. 2 CopA. It should be noted that quotations are not only governed by copyright law; it is also good scientific practice to provide correct quotations.

No, straightforward digitisation is a simple technical conversion, not an alteration. However, this qualifies as reproduction pursuant to Art. 10 para. 2 (a) CopA, which may not be done without the consent of the author or the owner of the rights, except if one of the limiting provisions applies (e.g. digitisation for private use).

No, ownership does not change the fact that the artist remains the author of the work and has the exclusive right to make alterations to the work pursuant to Art. 11 para. 2 CopA. The situation would be different if the artist had expressly permitted me to make alterations.

Yes, for building structures, Art. 12 para. 3 CopA: Works of architecture that have been constructed may be altered by the owner. However, the authors can oppose any distortion of their work that infringes their personality.

Yes, if a work is changed to the extent that it contains new creative contents, it is considered to be an adaption in the sense that it is derivative work (Art. 3 para. 1 CopA). However, if the work is edited without any creative quality, this is considered to be an alteration.

No, the museum must offer to return the original work to the artist (Art. 15 para. 1 CopA). The museum may only dispose of the work after the artist has refused to take it back.

Yes, this is reproduction pursuant to Art. 10 para. 2 (a) CopA. Files are called up on the Internet and saved on the computer. A copy of the file (=reproduction) has therefore been made on the computer. Although such files are usually only copied temporarily, e.g. the data is copied to the computer’s memory during the download and deleted again when the user leaves the website, they can also be saved permanently so that they can be called up again later. In this regard, Art. 24a CopA governs the admissibility of temporary copies.

Yes, the template does not necessarily have to be the original; a reproduction (copy) – even an unauthorised copy – can be used as the template (cf. Hilty, Urheberrecht, 2011, 133).

Yes, a photo is a copy of the work.

No, in both cases, a copy of the work is recorded – for analogue photos by the negative (cf. Hilty, Urheberrecht, 2011, 134) and for digital photos by the fact that the photo file is saved.

Art. 27 CopA – according to this provision, a work permanently situated in a place accessible to the public may be depicted; the depiction may be offered, sold, broadcast or otherwise distributed

No, the distribution of works applies to originals as well as copies (cf. Hilty, Urheberrecht, 2011, 135).

The collective rights management organisations – Art. 13 para. 3 CopA. Only collective rights management organisations are entitled to assert claims for remuneration, not the authors.

Pursuant to Art. 13 para. 1 CopA, libraries have to pay remuneration if they charge a lending fee. The term lending fee is defined in detail in para. 1.3. and 1.4. of Joint Tariff 6a, offering works for rent in libraries. This agreement was concluded between the collective rights management organisation ProLitteris and the libraries. If a library charges a fee for lending books to readers, it has to pay remuneration to ProLitteris pursuant to Art. 13 para. 1 CopA. The remuneration for books is 9% of the fee paid by the users (cf. para. 4.1 (c) JT 6a).

No, a work may only be freely resold or used in any other way if authors sell the work themselves or allow another person to sell the work. This does not apply here (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 12 N. 9).

Generally speaking, such a notice on a copy of a work is irrelevant because of the principle of exhaustion and the limiting provisions. This is different if the photo has not yet been published for the first time by the author and if the author gave the photo to the third party under the explicit condition that the photo may not be distributed further. The author has the exclusive right of first publication (Art. 9 para. 2 CopA); this is the author’s moral right and is not affected by the principle of exhaustion (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 12 N. 9a and 10).

No. Although the buyer became the owner of the photo, the conversion of the photo is an alteration pursuant to Art. 11 para. 2 CopA. Only the author may make alterations; it is the moral right of the author. This right is not affected by the principle of exhaustion.

Yes, international exhaustion applies. Pursuant to Swiss copyright law, the legitimate buyer of a copy of a work may then freely resell or otherwise distribute this copy (for more detail, cf. BGE 124 III 321 et seq.).

In both cases, a book is given to someone else for a certain period, and this natural person has to return the book after this period. If the book is rented, the person who rents the book must pay a fee for the use of the book. However, if someone only lends the book, no fee is payable.

With regard to the obligation to pay compensation for the rental of copies of literary and artistic works, Art. 13 para. 1 CopA.

No, it only applies to physical objects. Only physical objects can be ‘made available for a fee’ pursuant to Art. 13 para. 1 CopA.

Yes, these are governed by Art. 13 para. 2 CopA, according to which no remuneration has to be paid for:

• works of architecture;
• copies of works of applied art, and
• if the rental company and a user concluded a contract regarding the use of the copyrights (e.g. contract between the rental company and cinema regarding the rights to screen a film) and the tools for performing the contract also have to be rented out (in this case, the film reel) (example based on Müller/Oertli-Pfortmüller, URG, 2nd edition, 2012, Art. 13 N. 6).

Yes, this is the author’s exclusive right; according to Art. 10 para. 2 (c) CopA authors may make their work perceptible and available in such a way that people may access it at any time and from any place. This can also be done by uploading files (in this case, the video or the photo). At the same time, this is also an act of reproduction pursuant to Art. 10 para. 2 (a) CopA, because the video or photo is usually also saved on a server. The author is also permitted to do this.

As it is the exclusive right of the author to make a work available online, the student needs the consent of the author to do this (Art. 10 para. 2 (c) CopA).

No, only the author (or the natural person to whom the copyrights have been assigned) has the right pursuant to Art. 10 para. 2 (d) CopA to broadcast the work by radio, television or similar means, including by wire. The broadcasting organisation therefore needs to obtain the author’s consent.

Making a work available pursuant to Art. 10 para. 2 (c) CopA.

No, this qualifies as making a radio or TV programme publicly perceptible pursuant to Art. 10 para. 2 (e) CopA. Pursuant to Art. 22 para. 1 CopA the restaurant or hotel owner has to contact a collective rights management organisation – for background music or television, this would be SUISA, while the permissibility of the broadcast and the compensation are governed by Joint Tariff 3a (please note: only valid until 31 December 2016).

According to art. 382 para. 3 CO you are allowed to re-publish your scientific article already after 3 months from its first publication. However, there has never been a decision by a judge so far, on whether in such a case the contract or the law prevails.

You may choose the gold road of open access, which means that the publisher must immediately grant open access to the work. This usually happens in exchange of a publication fee to the publisher.

Only if this is foreseen by the publishing contract.

If the publisher is not in Switzerland and the governing law defined in the publishing contract is not Swiss, you must apply the rules of the second publication right of the country determined in the contract.

No. In this case you should apply the rules of the German second publication right.

No. You can apply the Swiss second publication right only if the Swiss jurisdiction is defined in the publishing contract.

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).

As long as I, as the author of the work, am a member of the collecting society, I will receive percentual remuneration for the use of my work based on the distribution regulation of the collecting society.

The SSA offers individual, centralised management, i.e. an area in which the SSA acts as an intermediary between authors and users. There are many rights holders who do this themselves without going through the SSA. This means the SSA does not have a monopoly and state intervention is therefore not justified.

Yes and no. The right to remuneration under Art. 19 para. 1 (b) and Art. 20 para 2 CopA can only be exercised by collecting societies with IPI authorisation. The management of the right to remuneration is subject to federal supervision. The amount of royalties is fixed by the Common Tariff 7, which is managed by ProLitteris. ProLitteris also represents other collecting societies. ProLitteris has to negotiate the Common Tariff 7 with umbrella teaching organisations and then submit it to the Federal Arbitration Commission for approval (Art. 46 para. 2 and 55 CopA). Once approved, the tariff is binding on the courts (Art. 59 para. 3 CopA). The tariff is therefore binding and schools can no longer dispute the amount of royalties it stipulates or secure different terms and conditions. By way of compensation, however, schools know they can obtain all rights from a single source with little fuss.

Management of the right to make music available on the Internet to be accessed on demand (Art. 10 para. 2 (c) in fine CopA) is not supervised by the Swiss Confederation. In this area, SUISA is subject to market and cartel law, which means it does not manage the rights to all works. The user, therefore, has to research beforehand whom to ask for the necessary licences. Assuming that SUISA is competent, the royalties are not fixed by binding tariffs but by simple civil licencing terms and conditions. SUISA collects fees based on these terms and conditions, although contractual freedom ultimately applies. The user and SUISA are free to reach an agreement on the amount of royalties which takes the specific circumstances of the case into account. This means there is more flexibility compared with areas that are subject to federal supervision. However, the process of acquiring rights will be more complicated.

No, from a legal perspective, this is considered to be perception of a work, which is not a copyright-relevant use in the case of published works. Reading and looking at published works are always permitted under copyright law.

The personal area is considered to be privacy which is worthy of protection. The decisive factor is not the place of the action but rather the personal context. As soon as the action takes place in the public sphere, it no longer falls under the personal area.

• Example for the personal area: playing music at home, even with the window open and the possibility that other people may hear the music
• An example of an action that is no longer in the personal area: street music.

The people must have a ‘close connection’ to me. Particular examples are family members, family-like communities such as shared accommodation, friends who have a close personal relationship (Art. 19 para. 1(a) CopA).

Generally speaking, no; such a close connection does not occur between ‘Facebook friends’. Legal doctrine (still) assumes that contacts which have been made on the Internet do not apply in this case. The close connection just arises in a small, strictly limited circle of people, which is not the case for Facebook friends.

Generally speaking, no, because the ‘personal area’ also necessitates that there be a close personal relationship between the people concerned. This is not the case with work colleagues or fellow students. However, something else can result when particular work colleagues or fellow students have a closer relationship with each other than the usual employment or training relationship (e.g. a close friendship develops between two or three students, or two students move into shared accommodation together).

Yes, published works may be copied for strictly private use (private use in the personal sphere or in a private circle for oneself and for closely connected people such as friends and relatives). You do not require the author’s consent to do so. If the copies are made on a private photocopier, the complete works may also be copied.

No, generally not. Copyrighted works may only be used when they have been published. A work is considered to have been published when the author makes his work available to a larger number of people outside his personal circle and can no longer exercise any control over who can use his work in this sense.

No, complete copies are not permitted outside the scope of private use in the personal sphere or in a private circle (Art. 19 para. 3(a) CopA). ‘All fellow students’ goes beyond the scope of the private area, which consists of a circle of persons who are closely connected with one another.

The jurisdiction in Switzerland is not uniform in this regard. According to the Civil Court of Basel, incomplete is understood to mean a maximum of 75% of a commercially available work (Civil Court of Basel-Stadt dated 19.06.2002 in sic! 2003, 217) while the Appellationshof Bern understands this to mean a maximum of 90% of the work that is commercially available (Appellationshof Bern dated 21 May 2001 in sic! 2001, 613).⇒ Exceptions for private use:

• paintings, photos, graphics, sketches and other works of art may be completely copied (Joint Tariffs 8 and 9)

⇒ Exceptions for private use for educational purposes:

• radio and television programmes may be taped completely on a password-protected platform (Joint Tariff 7 Sect. 7.4).

(c.f. the Joint Tariffs for further general information).

The law speaks of ‘educational purposes’, i.e. when a teacher would like to use a work for teaching purposes. However, ‘teaching’ does not refer to traditional school teaching in the classroom or in class groups. Instead, it includes every event in an educational context, in particular multi-class forms of teaching, project teaching, lectures, seminars, as well as completing tasks at home, (online) distance education, and using an online platform of the educational institution.However, an ‘educational context or educational use’ only exists when someone uses a work for these events to fulfil the teaching or learning purpose. And this ‘someone’ does not necessarily have to be a teacher. Pursuant to Joint Tariff JT 7, pupils, students, teachers, university lecturers, assistant lecturers – of all levels, in both public as well as private educational institutions – employees of schools and instructional institutions, assistant, scientific and non-scientific employees included, as well as the associated libraries belonging to the educational institutions fall under educational use.

Yes, an archive may collect newspaper articles when it can either invoke private use for educational purposes or professional use.

The archive can refer to private use for educational purposes (Art. 19 para. 1(a) CopA) or JT 7 when it is a part of an educational institution. In this case, the archive can make the newspaper article collection available in analogue as well as in digital form to the members of the educational institution concerned. NB: the collection must be put online on a password-protected platform; it may not be made freely available on the Internet.

The archive can refer to professional use for internal information and documentation (Art. 19 para. 1(c) CopA). It can also make the collection available in analogue or digital form; however, only internally for its employees’ use.In both cases of private use, complete newspaper articles may be copied, unless a particular article has not appeared in a magazine and can only be purchased in single copies online. Then this individual article is considered to be a sales unit and may only be copied incompletely pursuant to Art. 19 para. 3(a).

No, unless the employee consents to this use. Otherwise, only published works may be used for private use, Art. 19 para. 1 p. 1 CopA.

No, this does not serve an educational purpose.

No, although PhD students can also belong to the circle of people in an ‘educational context’, a public conference is not a related teaching event for which a work can be used.

Pursuant to Joint Tariff 7 sect. 7.4., complete radio and television programmes may be saved and archived on an internal password-protected school platform and then made available to the employees of the educational institution within the scope of private use for educational purposes as long as radio or TV are the only sources, i.e., no CDs or DVDs with the corresponding programmes are commercially available (c.f. the information sheet ‘Net-based use of complete radio and TV programmes by schools’ for further information).

No, without the consent of the author or the owner of rights only incomplete copies of CDs and DVDs may be copied for private use for educational purposes (Art. 19 para. 1 (b) in conjunction with Art. 19 para. 3(a) CopA). Excerpts are therefore permitted.

The situation is different in the case of private use in the personal sphere or in a private circle; here, complete copying of CDs and DVDs is permitted (Art. 19 para. 1(a) in conjunction with Art. 19 para. 3(a) CopA).

• libraries and other institutions accessible to the public may copy works (also completely) to secure and preserve their collections if these copies are not made for financial gain (Art. 24 para. 1bis CopA).

No, as this is not covered by private use in the personal sphere or in a private circle, nor by private use for educational purposes, nor by professional use (Art. 19 para. 1(a, b and c) CopA).

Yes, as long as he limits the access to the digital reserve list to his students in the case of the use of third-party works (password) and takes the scope of the work into consideration, depending on the type of work. The professor may make his own works freely available as long as he has not given up the rights to them.

Yes, as long as he himself falls under private use for educational purposes (Art. 19 para. 1(b) CopA); in this case, he may use a third party, a library, to make the copies for him (Art. 19 para. 1(b) in conjunction with Art. 19 para. 2 CopA). However, it means that the library may only copy excerpts from the teaching material.

No, this is not covered by private use for educational purposes pursuant to Art. 19 para. 1(b) CopA, which means that taped films may only be used for teaching (c.f. Joint Tariff 7 in this regard).

With regard to the use of a work, while every use is permitted by private use in the personal sphere or in a private circle and by private use for educational purposes, only copying is permitted in the case of professional use (however, with the exception that in-house distribution is also permittedwith the exception that in-house distribution is also permitted).

Yes, a research group can fall under professional use. It is decisive that the research institution is an institution within the meaning of Art. 19 para. 1(c) CopA. It is irrelevant whether it is a commercial business or a university, or another educational institution.

When the research group falls under professional use, the members may make copies (printed and digital) and distribute them to other members.

Yes, when this company and the intended purpose pursuant to Art. 19 para. 1(c) CopA fall under professional use.

No, the sending of copies abroad is not covered by the Joint Tariffs. In individual cases, the consent of the owner of rights would be required.Special case: the sending of a copy of a licensed work (e.g. article from a scientific e-journal) can also be permitted pursuant to the licence agreement.

No, the institution may only make archive and backup copies pursuant to Art. 24 para. 1bis CopA from its own collection.

However:

• The borrowing library can request a copy of a book or a DVD from the owning library based on Art. 19 para. 1(c) in conjunction with Art. 19 para. 2 CopA for its in-house professional use; in the process; however, only excerpts from the book or the DVD may be copied (Art. 19 para. 3(c) CopA). A copy of the book may principally not be lent to the library users of the borrowing library.
• However, the borrowing library can also request an excerpt copy of a work from the owning library for an individual library user.
• When the book or the DVD, etc. is no longer commercially available (= exhaustible), these works can be copied completely for private use (private use in the personal sphere or for educational purposes or professional use) (Art. 19 para. 3(a) CopA)

No, the purpose of Art. 24 CopA is the preservation of a work rather than making it publicly available (Art. 10 para. 2(c) CopA). This is no longer covered by Art. 24 para. 1bis CopA. This requires the consent of the author or the owner of rights.

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.

Any person whose copyright is infringed or threatened may request the court to prohibit an imminent infringement (i.e. request the court to order that a certain conduct be stopped).

The risk of copyright infringement must be imminent, tangible (a mere abstract speculation is not sufficient) and current (it must exist up to the moment the judgement is issued).

The risk is also current if there are clear indications that a copyright infringement is imminent.

Any person whose copyright is infringed or threatened has the right to remedy the existing infringement (Art. 62 Para. 1 (b) CopA). The claimant must provide evidence that an infringement is ongoing. In particular, he must provide documentary evidence or testimonies which prove that the infringement is ongoing.

The rights holder must present evidence to the court that the infringement is ongoing (documents or testimonies) to remedy the existing infringement (Art. 62 Para. 1 (b) CopA). It is possible to request the court to order the opposing party to provide information if necessary (Art. 62 Para. 1 (c) CopA).

A request for information (Art. 62 para. 1 (c) CopA) can be made whenever it becomes necessary for the claimant’s defence to establish the infringement of his rights or the scope of the infringement, or in order to calculate the damage caused.

Any natural or legal owner of the copyrights in question. Therefore, this may be the author but also any third-party assignees of the copyright, in particular collective rights assignment organisations which have been granted certain rights.

The person asking the court to remedy the infringement of their copyright (Art. 62 Para. 1 (b) CopA) can request that compensation be awarded for all the damages they have suffered as a result of the violation (Art. 41 et. seq. SCO).

The copyright owner cannot exercise any rights other than those granted by the author. For example, if the author grants an editor the copyright to a document on a non-exclusive basis for the sole purpose of publishing the work as an article in a printed magazine, that editor cannot take legal action for a copyright infringement if the author then decides to grant the rights to publish the same article to an online magazine.

If the copyright belongs to more than one person, each joint author may take legal action independently for infringements but may only ask for relief if it benefits all the other joint authors (Art. 7 Para. 3 CopA).

The action is brought against anyone who participated in the infringement, i.e. the main person(s) responsible for the illegal act and any instigators and accomplices.

The instigator is the person who asks for the creation of the work or places the work on the market, which infringes the copyright. For example, this might be a professor who asks the university webmaster to publish an entire, scanned book on a website to share it with all the visitors to the site.

The accomplice is the person who performs and responds to the instigator’s request. The accomplice here, for example, would be the university webmaster who publishes an entire book scanned by the professor on the university website at the latter’s request.

The request to the court must be as precise as possible with regard to the situation described and the conclusions drawn (cf. BGE 97 II 92). For example, it can request the court to prohibit or remedy an illegal act or force the defendant to respect the authorship of a work.

In order to ensure that the court order is properly implemented as soon as possible, the best course of action is to request that a threat of enforcement is issued with the verdict based on Art. 292 SCC, which stipulates that a criminal penalty may be enforced if an official order is disobeyed. If the court finds that the manufacture of the goods infringed the copyright, it can order their forfeiture and sale or destruction.

In addition to actions for prohibition (Art. 62 Para. 1 (a) CopA), remedying an existing infringement (Art. 62 Para. 1 (b) CopA) and for providing information (Art. 62 Para. 1 (c) CopA), which aim to limit/remedy the infringement, the following actions also aim to compensate the injured party for the damages suffered: action for damages (Art. 41 SCO), satisfaction (Art. 49 SCO) and handing over of profits (Art. 62 Para. 2 CopA).

Yes, disseminating (renting out) DVDs before a new film has been released or while it is being played in cinemas for the first time is not admissible (infringement of Art. 12 Para. 1bis CopA). This constitutes unlawful and culpable conduct. The damage suffered due to loss of revenue was caused by “natural and adequate causality” resulting from the sale or rental of the DVDs, which was in itself a breach of Art.12 1bis CopA (cf. BGE 4a_142/2007 dated 26.9.2007).

The claimant must fulfil the conditions required by Art. 41 SCO. In particular, they must prove the existence of the damage caused by unlawful and culpable conduct, and there must be causal connection between said damage and culpable conduct.

Any act which infringes the exclusive rights of the copyright owner is illegal if it has not been authorised or is not a limiting provision to copyright. Therefore, this infringement must be caused with culpability, which is expressed in negligent or wilful conduct.

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).

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.

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.

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.

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.

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.

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.

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.

Any person who intentionally omits to indicate the source used where required by statute and where the author is named therein, and to provide the name of the source is liable to a fine on the complaint of the person whose rights have been infringed (Art. 68 CopA). Failure to indicate the source is punishable only following a complaint and is not considered to be a serious enough contravention to be entered on the offender’s criminal record.

In addition, failure to indicate a source at an academic level or in research is considered to be unethical (violation of good scientific practice) and may lead to disciplinary action.

The Swiss Criminal Code stipulates that the court can order the forfeiture of objects that have been used or were intended to be used for the commission of an offence or that have been produced as a result of the commission of an offence, unless the assets are passed on to the person harmed for the purpose of restoring the prior lawful position. The law allows the forfeiture of counterfeit copies of the work as well as the material used to produce them.

Forfeiture can only be ordered by a court at the end of proceedings.

However, in urgent cases, the criminal court magistrate or the police can order the sequestration of goods under the conditions given during the proceedings, or as soon as they begin.