2.1 Protected work

to consider
good to know
faq

The Swiss Copyright Act (CopA) defines protected works as “literary and artistic intellectual creations with an individual character” in Art. 2 para. 1 CopA. This definition is elaborated in Art. 2 para. 2 CopA with a list of examples of everything that can be considered a protected work.

  • the work must be expressed in one form or the other.

However, it is irrelevant for copyright protection whether the work is valuable, expensive, aesthetic or meaningful. The value or purpose of the work in question does not matter (Art. 2 para. 1 CopA). The only thing which matters is that the above-mentioned conditions are fulfilled.

On 1st April 2020, the new Swiss Copyright Act (CopA) came into force. The new Act extends the works protection to photographs and depictions of three-dimensional objects produced by a process similar to that of photography even if they do not have individual character (art. 2 para. 3bis CopA).

Website last updated: 1.4.2020

TO CONSIDER

Copyright symbols and other copyright notices

How do you deal with a copyright symbol©, a watermark, a notice such as “all rights reserved” or with similar markings?

Such distinctive signs on works often cause uncertainty as they give the impression that the work is protected by copyright due to these markings. However, that is not the case. Swiss copyright (and many other foreign copyright laws) does not require any distinctive sign or registration to protect a work. There are no registries or lists in which works or authors must be registered (in contrast to other industrial copyrights, such as patents or brands). Copyright protection depends solely on whether the conditions specified in Art. 2 para. 1 CopA (expressed as a human intellectual creation with individual character) are fulfilled. However, distinctive signs or notices can still fulfil a type of “warning function” to make it clear to people that copyrights may be infringed when the work is used.

GOOD TO KNOW

Copyright protection does not only exist for “artistic and literary creations”

The law only mentions “artistic and literary creations” in Art. 2 para. 1 CopA. However, the restriction to literature and art is far too narrow and not decisive. For example, scientific works and computer programs can also be protected works without belonging to the category of artistic and literary creations. As a result, they are mentioned later on in the Copyright Act, such as in Art. 2 para. 2 (a) CopA “scientific linguistic works” and Art. 2 para. 2 (d) CopA “works with scientific or technical content”, and computer programs are considered to be a work pursuant to Art. 2 para. 3 CopA. However, scientific works and computer programs, too, must always fulfil the conditions specified in Art. 2 para. 1 CopA (expressed human intellectual creation with individual character). This is not always the case for scientific works when only the “scientific idea” is put to paper and lacks an original form of expression.

FAQ

2.1-6 Can I assume that a work that has a copyright symbol is protected by copyright?

Pursuant to Swiss copyright law, there is no requirement to have a distinctive sign on a protected work, and it is not possible to register such a work. The copyright protection of a work depends on whether the conditions pursuant to Art. 2. para. 1 CopA have been fulfilled. When they have, a work is protected from the time it is created (Art. 29 para. 1 CopA).However, if a copyright sign has been affixed, this can be an indication for the user that it could be a protected work.