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  1. English
  2. Copyright
  3. 1. WHERE... is the work used and which national law is applicable?
  4. 1.5 Determining the country where a work is being used: online dissemination
  • Basics of Copyright
  • 1. WHERE... is the work used and which national law is applicable?
    • 1.1 Territoriality Principle
    • 1.2 Use in Switzerland
    • 1.3 Use abroad
    • 1.4 Contracts with international aspects
    • 1.5 Determining the country where a work is being used: online dissemination
    • 1.6 Specifics of legislation: example of the term of protection of a work
  • 2. WHAT... is a protected work?
  • 3. WHO... owns the copyright in the work?
  • 4. WHICH... rights in the work are protected?
  • 5. HOW... may other people use a work?
  • 5b. HOW ... can other people use a work? - Contractual licenses
  • 6. AND... responsibility and sanctions?
  • 7. Copyright and social media

1.5 Determining the country where a work is being used: online dissemination

Index Good to know FAQ

In the case of copies being handed out to students, it is easy to determine the place (and so the country) where the work is being reproduced and distributed. When a work is disseminated over the Internet, however, it becomes more difficult to identify the country where the work is being used: is it the country where the work has been published online? Or the country from which the work can be accessed? Or the country where the work is being viewed? Or the country where the damage was committed? Or the country of residence of the victim? There is no definitive answer. Again, each case should be dealt with on an individual basis and any possibility of a conflict of law or jurisdiction cannot be ruled out altogether.

One act, several offences – how a website is received could mean that several offences stem from one single act, depending on where it is received. Thus a website for Swiss, French and Belgian audiences could be the cause of a copyright infringement in each of these countries. Because of this, publishers put location-based blocks on their services (e.g. YouTube, Netflix, etc.).

Good to know

Connecting factor of an “online” offence

For example, as defined in disputes, French case law has retained the operative factor criteria, i.e. the place the work was published online (Cass., Civ. 1, 30 January 2007, no.03-12354), the place where the damage took place (TGI Paris, chapter 3, section 2, 18/12/2009, ed. Seuil et al. / Google Inc. and France), or even the place where the website is received (Cass., Com. 10 July 2007, no.05-18571).


FAQ

1.5-1 A professor teaching at the University of Neuchâtel and Lyon wants to publish a photo that he took of Zurich station and which features the Niki de Saint Phalle sculpture on his French-language blog on railway history. How should this be approached?

The lecturer’s blog can be considered as aimed at French and Swiss audiences, which implies that France and Switzerland can be considered as the places where the work can be accessed. While the use of the photo may not cause any problems in Switzerland (here the limiting provision of Article 27 of the Swiss Copyright Act, works on premises open to the public, applies), this kind of limiting provision does not exist in France. The artist’s successors in title may claim an infringement of their copyrights (use of the photos without consent) in France.

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CCdigitallaw is a national Competence Center in Digital Law that supports Swiss Higher Education Institutions (students, academic and administrative staff) in dealing with legal questions related to the digitization process and the use of new media and technologies. To do so, the Center offers various services such as a detailed knowledge base, FAQs, a wide range of on- and offline training activities and an advising service.

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CCdigitallaw has been created through a project funded by swissuniversities. The center is the result of a collaboration between the Università della Svizzera italiana (USI), University of Basel (UNIBAS), University of Neuchâtel (UNINE), University of Geneva (UNIGE), and the Conference of Swiss Libraries (CBU-KUB).

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