3.3-1 Must authors identify themselves as such on a work?
No, authors alone decide whether they wish to disclose their names or remain anonymous; they can also use a pseudonym.
3.3 The author cannot be determined
Authors are the only natural persons who have the right to put their name to the work or to create the work under a pseudonym or distinctive sign (right to recognition of authorship, Art. 9 para. 1 CopA). As they can also create a work anonymously, authors cannot always be clearly identified. Copyright law therefore applies the following ‘step model’ to determine authorship:
- An author is considered to be someone who is named as such
- If authorship is unknown, the author is considered to be the person who edits the work
- If the editor is also unknown, the author is considered to be the person who publishes the work
Finally, if the author is unknown, no conclusions can be drawn with regard to the author’s identity and the work has not yet been published, then nobody can exercise the copyright.
An author is considered to be someone who is named as such
Unless proven otherwise, the CopA identifies the author as the natural person whose name, pseudonym or distinctive sign appears on the copies of the work or upon publication of the work (author’s designation Art. 8 para. 1 CopA). If the designation on the work makes it possible to identify the author, even if this is not the author’s actual name, this natural person is considered to be the author.
For example, the British writer J. K. Rowling also used the pseudonym Robert Galbraith, but people knew that she was the person behind this pseudonym.
If anybody contests this (e.g. the original author), the challenger must prove that the person named on the work is not the author.
If authorship is unknown, the author is considered to be the person who edits the work
However, if the author is not named or cannot be established for a pseudonym or a distinctive sign, the person who edited the work can exercise the copyright.
Author and editor are unknown
If this person is also not named, copyright can be exercised by the person who published the work (Art. 8 para. 2 CopA).
For example, sheet music marked as ‘anonymous’ – the work was created anonymously, the author is unknown; the author is thus the party who edits the work (e.g. music publishing house). If the work was not edited, the author is the party who published it. However, it is important that the author agreed to the editing or publication of the work.
In cases where the editor or the publisher is the author, it should be noted that neither the editor nor the person who publishes the work owns the original copyright. They can only ‘exercise’ the copyright. This only has an impact if third parties unlawfully use the work, in which case the editor or the person who published the work can defend their rights.
For example: in the above case with the sheet music, the publishing house can defend its rights if third parties unlawfully use the sheet music in contravention of the provisions of the CopA (e.g. distribute the sheet music without the consent of the publishing house); however, the publishing house cannot simply assign the rights in the sheet music to third parties.
FAQ
3.3-2 The archive of a publishing house releases an illustrated book on street festivals whose author is unknown and cannot be determined, for publication. Can the publishing house claim the status of author because it edited or published the work?
No, the presumption embodied in Art. 8 para. 2 CopA only applies if the editor or party who published the work knew the author who wished to remain anonymous.