Graphic recording of music (sheet music)
Graphic recordings of sheet music do not fall under Art. 2 para. 2 (b) CopA. Apart from exceptions, they do not have any copyright protection themselves; they are only the communication form of the – potentially protected – music. However, when reproducing sheet music, it must be noted that if the music itself is protected by copyright, the corresponding sheet music may not be reproduced or only reproduced under certain conditions.
No protection of musical styles, musical theories, etc.
In the same way as the idea or the thought itself do not enjoy any independent copyright protection, rather only when these are cast in a form which is perceptible to the senses, a special musical style (e.g. blues, classical music, jazz, techno, etc.) or a musical theory alone is also not a legitimate work in itself. That means that a newly created musical style can also be used by others and further developed, for example, without requiring any consent (cf. a rather old but extremely good decision of the Federal Supreme Court: BGE 70 II 57 et seq. for further information).
What about straight interpretation of music by musicians, singers, etc.?
A musical performance, a concert or other presentations of existing musical works are basically unprotected works within the meaning of Art. 2 para. 2 (b) CopA as they lack the required individuality. Simply said, anyone who sings a song from notes usually does this as any other person would do it. However, in individual cases, an interpretation of a musical work may be so unique and so characteristic of the composer that there is sufficient individuality to protect the interpretation. Then this is considered to be a derivative work of the original work (derivative work,Art. 3 CopA).
However, even if the efforts of singers, orchestras, musicians, conductors, sound engineers, etc. who present or interpret a musical work do not fall underArt. 2 para. 2 (b) CopA b
a lack of individuality, they are not totally without legal protection. Pursuant to Art. 33 et seq. CopA
, performance artists enjoy what is known as protection of related rights. On the one hand, this gives them the right to decide who records their presentation, makes it perceptible elsewhere, forwards it, or who may copy it (Art. 33 para. 2 CopA
). On the other hand, the performers have a right to remuneration from the related rights (Art. 35 CopA
). Furthermore, related rights also guarantee personality rights for performers and the right to be recognised as such when they perform a work (Art. 33a CopA
). In the same way as copyright protection, the protection of related rights also only exists for a certain period; however, the protection of related rights (Art. 39 CopA
), which amounts to 50 years from the moment of performance, is shorter than the copyright protection period, which amounts to 70 years from the creation of a work (Art. 29 et seq. CopA