The moral right of the author also includes the right to the work’s integrity. Authors have the exclusive right to decide
⇒ whether, when and how the work may be altered (Art. 11 para. 1 (a) CopA) and
⇒ whether, when and how the work may be used to create a derivative work or may be included in a collected work (Art. 11 para. 1 (b) CopA).
Authors may oppose any distortion of the work that is a violation of their personality (Art. 11 para. 2 CopA). However, it is permissible to use existing works for the creation of parodies. The Copyright Act makes special provision for such (Art. 11 para. 3 CopA).
Alterations to works:
Alterations (Art. 11 para. 1 (a) CopA) refer to changes made to a work that do not have creative value of any kind (e.g. depiction of a sculpture on a commemorative coin, cf. BGE (decision of the Swiss Federal Supreme Court ) 114 II 370). There are many possible variations of such alterations – big and small alterations, alterations that detract from – or even improve – the quality (e.g. changing a black-and-white photo to a colour photo), misuse, shortening or lengthening of a work, other interpretations, etc. An alteration in this sense affects the quality of the work. This does not apply to purely technical changes; for example, if a work is simply transferred to a different carrier or storage medium, cf. Müller/Oertli-Pfortmüller, CopA, 2nd edition, 2012 Art. 11 N. 4). Thus, the digitisation of an image, for example, does not qualify as an alteration.
Only the author may alter a work. Third parties may only alter a work if the author has given their consent. Authors and third parties do not always have to come to an explicit agreement in this regard – in some sectors, the author's consent can be tacitly assumed: e.g. a magazine editor may shorten a reader’s letter. Employees in an employment relationship also sometimes have to accept certain alterations (described in detail under 'Good to know: Copyright and employers’ authority to give directives').
Infringement of the right to decide whether, when and how the work may be altered:
A third party can alter a work so much that it is distorted. Authors may oppose any distortion of their work that infringes their personality (Art. 11 para. 2 CopA). This is a non-assignable right.
But when can a work be considered 'distorted'? The alteration of the work must infringe the author's personal rights (Art. 11 para. 2 CopA
). Hence it depends on whether the alterations offend an author’s personal honour or damage their professional reputation, or whether such damage is imminent (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 11 N.
13). It especially needs to be asked whether the alteration of a work discredits, debases or disparages the author. The background to each individual case should also be considered – for example, an author who writes a political article and voluntarily participates in a public debate between participants who usually express their opinions in an aggressive and controversial manner must expect harsh criticism and cannot raise an objection based on 'any hypersensitivity on the part of the author'. In this case, an objective benchmark must be applied (BGE 131 III 493
). Criticism really only infringes the personality of an author when it is hateful, unnecessary or insulting (cf. Hilty, Urheberrecht, 2011, 17