6.5.3 Forfeiture of works used to commit the infringement

to consider
faq

According to Art. 69 et seq. SCC, to which Art. 72 CopA makes expressive reference, the court is able to order the forfeiture of works 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 or assets that have been acquired through the commission of an offence or that are intended to be used in the commission of an offence or as payment therefore, unless the assets are passed on to the person harmed for the purpose of restoring the prior lawful position (Art. 70 Para. 1 SCC).

Works of architecture that have been constructed may not be forfeited (Art. 72 CopA).

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

During the proceedings or even at the beginning, the criminal court magistrate or the police in emergencies (Art. 262 Para. 3 CrimPC) can order the sequestration of goods under the conditions and for the reasons given in Art. 263 et seq. CrimPC.

For example: The magistrate can order the sequestration of counterfeit copies to prevent them from being placed on the market or so they can be used as evidence. These copies may be forfeited and destroyed at the end of the proceedings.

TO CONSIDER

No forfeiture of works of architecture

In order to respect the principle of proportionality and, in particular, the rights of the owner of the building in cases involving works of architecture, once created, the works cannot be forfeited. This means that if a copyright infringement is suspected with regard to a work of architecture, preliminary measures must be sought before it is created.

Thus, the plans and documentation relating to the construction of a building can be sequestrated and eventually forfeited. However, after the building has been constructed (or converted), it is no longer possible to forfeit the work of architecture in connection with copyright infringement to destroy it, for example. Nevertheless, under civil law, the claimant can always request for the construction to cease as well as compensation.

FAQ

6.5.3-1 Can a work used to commit a copyright infringement be confiscated?

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.