According to Art. 67 CopA, on the complaint of the person whose rights have been infringed, any person who wilfully and unlawfully, which means without authorisation of the owner of rights or without a legal exception (limiting provision) like private use in accordance with Art. 19 CopA or the right to quote in accordance with Art. 25 CopA, commits any of the following acts is liable to a custodial sentence not exceeding one year or to a monetary penalty:
- uses a work under a false designation or a designation that differs from that decided by the author (Art. 67 Para.1 (a) CopA);
A use of this kind corresponds to an infringement of the author’s exclusive right to decide under what author's designation their own work is published (right of recognition of authorship, Art. 9 Para. 1 CopA)
A use of this kind corresponds to an infringement of the author’s exclusive right to decide whether, when and how their own work is published (right of first publication, Art. 9 Para. 2 CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to decide whether, when and how their own work may be altered (protection of a work’s integrity, Art. 11 Para. 1 (a) CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to decide whether, when and how the work may be used to create a derivative work or may be included in a derivative work (derivative works, Art. 11 Para. 1(b) CopA)
A use of this kind corresponds to the protection of the author’s exclusive right to produce copies of the work, such as printed matter, phonograms, audiovisual fixations or data carriers (right of reproduction, Art. 10 Para. 2 (a) CopA)
A use of this kind corresponds to the protections of the author’s exclusive right to offer, transfer or otherwise distribute copies of the work (right of distribution, Art. 10 Para. 2 (b) CopA)
- recites, performs or presents a work or makes a work perceptible somewhere else either directly or with the help of any kind of medium (Art. 67 Para. 1 (g) CopA);
A use of this kind corresponds to the protection of the author’s exclusive right to recite, perform or present a work, or make it perceptible somewhere other than the place it has been presented (right to make a work perceptible or available, Art. 10 Para. 2 (c) CopA).
- makes a work available through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them (Art. 67 Para. 1 (gbis) CopA);
A use of this kind corresponds to the protection of the author's exclusive right to recite, perform or present a work, or make it perceptible somewhere else or make it available directly or through any kind of medium in such a way that persons may access it from a place and at a time individually chosen by them (on-demand services, Art. 10 Para. 2 (c) CopA)
- broadcasts a work by radio, television or similar means, including by wire, or retransmits a broadcast work by means of technical equipment, the operator of which is not the original broadcasting organisation Art. 67 Para. 1 (h) CopA);
A use of this kind corresponds to the protection of the author's exclusive right to broadcast the work by radio, television or similar means, including by wire (right to broadcast, Art. 10 Para. 2 (d) CopA) and to retransmit works by means of technical equipment, the provider of which is not the original broadcasting organisation, in particular including by wire (right to retransmit, Art. 10 Para. 2 (e) CopA)
A use of this kind corresponds to the protection of the author's exclusive right to make works made available, broadcast and retransmitted perceptible (Right to make a work publicly perceptible, Art. 10 Para. 2 (f) CopA)
Furthermore, any person who wilfully and unlawfully commits any of the following acts will be criminally liable:
- refuses to notify the authority concerned of the origin and quantity of goods in their possession that have been unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution to commercial and industrial consumers (Art. 67 Para. 1 (k) CopA)
A use of this kind corresponds to the right of the author of a computer program to demand the exclusive rental right if this fulfils the characteristics of a work in accordance with Art. 2 CopA.
It is important to note that action against the criminal offences set out in Art. 67 Para. 1 CopA are only ever brought by the complaint of the person whose rights have been infringed, which means in particular that if the injured party does not act, the infringement will not be brought to court.
When a complaint is filed, the complainant also has the right to withdraw their complaint at a later stage, thereby terminating the criminal proceedings.
The criminal offences set out in Art. 67 Para. 1 CopA are only punishable offences if they were committed wilfully, in particular with intent. But dolus eventualis is sufficient. However, an offence committed negligently is not punishable. If before committing the act, the offender was expressly warned or cautioned regarding the copyright in question, it would be difficult to prove that their illegal conduct was not wilful (intent or dolus eventualis).
