Regularly it does not lie in the author's interest to simply forbid third parties the use and/or the performance of the own creation. The author prefers much rather that his work is distributed against refund. Certainly the individual holder of a copyright faces a large number of potential users, which makes the individual collection of the owed remuneration practically impossible. Therefore such individual collection has been replaced by the collective exploitation by collecting societies, to which the beneficiaries (copyright owners) may (partly) assign their exploitation rights. For certain rights the collective exploitation is regulated by law. Currently there are five approved collecting societies in Switzerland.
The SUISA, the Swiss Society for the Rights of Authors of Musical Works (responsible for authors of non-theatrical musical works and music publishers), the SUISSIMAGE, the Swiss Society for Authors' Rights to Audiovisual Works (responsible for the rights on films and movies), the PROLITTERIS, the Swiss Copyright Society for Literature and Art (responsible for copyrights on printed works and pictures), the SSA, the Swiss Society of Authors (responsible for dramatic works and music) and SWISSPERFORM, the Swiss Society for performers, broadcasting services, music and film publishers.
All Swiss collecting societies have concluded reciprocity agreements with a multiplicity of foreign sister societies, which guarantee that royalties brought in abroad will be forwarded to their members. The collecting societies are subject to supervision by the Swiss Federal Institute of Intellectual Property (IPI). Regarding the approving of the tariffs of the collecting societies, the Federal Arbitration Board for the Use of Author's Rights and Neighboring Rights is in charge.
The author regularly depends on persons or entities, which support him with the commercialisation and exploitation of his works. The oldest and most important kind of exploitation is that the author leaves his work to a publishing house for publication, which, generally speaking, in return lets him participate in the proceeds of the sale of his work. While a regular licence can concern any defined use of a work, the publishing contract, the obligation and the entitlement is basically limited to the work’s reproduction and distribution.
A copyright is transferable and inheritable. However, the author cannot sell the core domain of the copyright, such as the rights linked to his personality e.g. the right to claim authorship. In individual cases though the author may waive his claims out of such rights vis-à-vis third parties (if needed for money).
The proprietary work derives on the one hand from the personality of the author (e.g. a personal diary), on the other hand it can become an asset that may be commercialised. Between a drawing of a child, which usually only has purely idealistic value and a blockbuster movie, there are a variety of different possibilities to realise the value of a copyrighted asset.
The enjoyment and the exercise of these rights shall not be subject to any formality (particularly the signs © or "copyright"); such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. (Article 5 (2) of the Berne Convention for the Protection of Literary and Artistic Works).
New technical systems, such as digital rights management (“DRM”), make it possible for owners of copyrights to control and prohibit respectively the delivery of the digitalised content of their works e.g. for playback on a computer, portable device or network device. The copy protection is the crucial point of these control systems, allowing the purchaser of a music CD for example to make either no copy at all or a limited number of copies of the music files on the CD.
The control possibilities of the DRM may also extend to uses which, like the copying for private use, are legally permitted. Based on this fact, the discussion started about the question if the private use actually constitutes a right of the user, or if such use may only be regarded as pragmatic exception to the copyright protection, for which no justification exists anymore, when a new technical system allows the use of a control mechanism in the area of private use.
The collecting societies will possibly be challenged by the DRM and lose significance, should the controlling possibilities reach the end users’ private use of digitalised copyrighted products. The legal framework for the application of DRM is being discussed under the current revision of the copyright law, whose termination and implementation is not to be expected within the next five years yet.
Since there is no public register for copyright works in contrary to patents, designs and marks, from which the priority of the works could be learned, it is often difficult to proof such priority of copyrighted works.
Accordingly it is important that the author always records his ideas, drafts and compositions. Such documentation should take place continuously during the creative process, as not only completed works, but also drafts and parts are legally protected.
Thereby not only the creation of work itself, but also its exact time of creation must be recorded. Sometimes in a copyright dispute it can be crucial if it may still be recognized afterwards, whether the own work existed already one week earlier than an imitation and/or a plagiarism.
The enforcement of a copyright often fails because of the lack of evidence that the own creation was there before the imitation.
Within the legal framework basically those who make the legally protected works available on a server accessible over the internet are responsible for the use of music in the internet and other protected works (such as films, pictures etc.). Anyone who controls the content of a website is responsible and must obtain the necessary licenses. Also those who indirectly contribute to, tolerate or benefit from a copyright infringement (so-called "interfering persons"; e.g.: service providers) may possibly be bound to omit or remove such copyright infringements. However, the liability for damages requires intention or negligence (Article 41 of the Swiss Code of Obligations).
According to Article 10 para. 2 lit. a of the CRA the author has the exclusive right to produce work reproductions. This right also includes the digital storage of a work. The right of reproduction basically also includes each reproduction within the frame of the use of the internet and online-use respectively of a work, thus in particular the up- and downloading (Ivan Cherpillod, in: Hilty [Ed.], Information Highway, Bern/Munich 1996, p.262 et seq.; Martin Wirtz, in: Bröcker/Czychowski/Schäfer [Ed.], Praxishandbuch Geistiges Eigentum im Internet, Munich 2003, p. 627 et seq.).
As an exception to this right of reproduction reserved to the copyright holder the CRA rules that disseminated works may be used for personal use (see Article 19 CRA). Personal use shall mean any use of works in the personal sphere and within a circle of persons closely connected to each other, such as relatives or friends (Article 19 para. 1 lit. a CRA). Only natural persons may rely on the right to personal use in the narrow sense. Personal use in the broader sense means any use of works by a teacher for teaching in class (Article 19 para. 1 lit. b CRA) or the copying of work reproductions in undertakings, public administrations, institutes, commissions and similar institutions for internal information or documentation (Article 19 para. 1 lit. c CRA). Persons entitled to personal use may also have reproductions made by third parties; libraries that make copying apparatus available to their users shall also be deemed third parties within the meaning of this paragraph (Art. 19 para. 2 CRA). The following shall not be permissible outside the private sphere:
In other words, the complete or practically complete copying of commercially available reproductions is allowed within the private sphere in the sense of para. 1 of Article 19 CRA. However, this article shall not apply to computer programs (Article 19 para. 4 CRA; further information on Software Protection).
Allowed: The downloading of copyrighted data containing texts, pictures or music is allowed for the personal use. According to the predominant opinion of the doctrine in Switzerland, the download for personal use is allowed, even if the offered data („Upload“) was illegally uploaded. Such download of music or other data (e.g. motion pictures) is free of charge for the private user (see Article 20 para. 1 CRA) and subject to the terms of the provider respectively. According to the law, any person who manufactures or imports blank cassettes or other phonograms or videograms suitable for the recording of works (e.g. also CD-R) shall be requested to pay a remuneration to the author for the use of works for the personal use (Article 20 para. 3 CRA). However, the importer will regularly pass on the amount paid as remuneration to the consumer and consequently the private user pays his use.
Allowed: It is basically allowed to transmit lawfully copied music data or song texts and other copyrighted data, as long as such transmission happens in the personal sphere and within a circle of persons closely connected to each other, such as relatives or friends (personal use; see Article 19 para. 1 lit. a CRA). The relationship to these persons may not exist just or only because one was contacted for the purpose of file transmission or sharing. Otherwise any deliberate contacting with so-called „Internet-Pirates“ would legally be considered as close connection permitting unlimited copying.
Allowed: As a rule it is allowed to upload copyrighted song texts, music and picture data etc. to a protected area in the Internet (e.g. protected by a password), to which only persons have access who are personally closely connected to the uploading person (personal use).
Allowed: In any case it is allowed to upload and download for example music data or song texts, provided that the copyright holder agreed to such use. Copyright holders may be the authors (composers, songwriters), the interpreters, the producers of phonograms and videograms and, inasmuch as broadcasting is assumed, also the broadcasting company according to the predominant opinion of the doctrine. Those who acquired (especially by agreement) the rights from the aforementioned original beneficiaries, may also be copyright holders. Should the mentioned copyright holders set up conditions for the use outside of the personal sphere, they are to followed. In the event that complete songs or phonograms are offered for individual downloading („Music on demand“) the provider needs a license for this purpose.
Allowed: It is allowed to burn CD's/DVD's etc. for the own personal use as well as for the purpose of giving them to close relatives or friends.
Not allowed: It is not allowed to upload copyrighted music data or song texts to an area in the Internet freely accessible for everyone (cf. decision of the criminal court of the city of Basel dated 31 January 2003, published in: sic! 2003, p.960 et seq.; cf. also decision of the Swiss Federal Court dated 11 August 1999, published in: sic! 1999, p. 635). This is also valid for other data like pictures or texts. It is thereby irrelevant, if this illegal upload was done with or without the intention of commercial profit.
Not allowed: Without a license from the copyright holder allowing such activity, it is not allowed to copy by transmitting a file to a database freely accessible beyond the private circle (cf. Criminal decision of the District Court of Bremgarten dated 27 May 2003, shown and reviewed by Elvira Huber, sic! 2004, p. 170 et seq.).
Not allowed: Without a license from the copyright holder allowing such activity, it is neither allowed to burn CD's/DVD's for their (sale) distribution, nor for the purpose of giving away such CD's/DVD's to persons outside the circle of persons closely connected to each other. It is further not allowed, according to the predominant opinion of the doctrine, to „hand on“ for free CD's or DVD's to „colleagues“ (i.e. not friends) in school nor against payment of the price of the blank CD/DVD (e.g. CHF 1.00).
The habits concerning consumption and use have changed dramatically with the spread of the internet. Currently a young generation of consumers is growing up, for which the classical storage media (records, cassettes, compact discs) are fairly irrelevant and who more frequently use the Internet as medium for their enjoyment of culture.
Are we confronted with mass cyber-crime? Will the classical balance of interests in copyright collapse because of the internet? There are many untruths, a good deal of smattering and plenty of rumors to the subject "download on the internet". There is a need for enlightenment. You may find information on this webpage, enabling you to get an overview on what is legal and illegal respectively under Swiss copyright law.
Published works may be used personally by anybody. It has to be distinguished between the private use as such and the internal use within a company or society. If somebody is allowed to use a work personally, he may have produced the necessary copies by a third party. Such reproduction is allowed under the conditions that the reproduction is for the personal use of the principal only and that the principal keeps the authority over the purpose and extent of the reproduction. In any case it is prohibited to ask the third party to make copies in stock.
A work is protected as soon it is created independant from the question, whether it is fixed in tangible form. The protection ends 70 years after the death of the author (post mortem auctoris). Thus, a late work, created a year before death, is protected during some 70 years. A work, made in the twenties of an author dying aged 85, may benefit from a protection during 135 years. The protection period (always 70 years post mortem auctoris) is absolute, the duration of the protection is relative.
It is also the purpose of copyright to balance between the individual interest of the copyright holder to monopolise his work and the public interest in a free flow of information. Therefore, the copyright is limited in different ways.
The original copyright holder or his successor have the right to make the work available to the public in an immaterial form (by playing a drama, reading a text, dancing a ballet, showing a film etc.). The storage of the work in a database as well as the upload on an internet website are both reserved to the copyright holder.
The holder of the copyright has the exclusive right to copy the work in any form. This right also covers the digital storage of a work. It is reserved to the copyright holder to produce, sell or to provide in any other form copies of the protected work (e.g. books, CDs, DVDs etc.).
The author and original copyright holder has the exclusive right to define the conditions under which his work may be changed or modified. He also defines if, when and how the work may be used as basis for the creation of another work.
The author has the right to claim authorship of the work. This right is only respected by the obligated, in the event that the name of the author, in relation to the work, is mentioned in a manner that the public considers as the identification of the author. The form of this designation basically depends on the customs of the particular branch. However, it regularly will suffice to mention the name, family name or pseudonym of the author.
The author has the right to define, if, when, how and under which identification of the author, the own work shall be made available to the public for the first time.