Copyright has received an update
The new copyright law has been in force since 1 April 2020. The following article focuses on the topics "protection of photographs" and "internet piracy". A comprehensive treatment of all innovations would go beyond the scope of this article.
Within the framework of the revision, there were controversial discussions between the various stakeholders, which ultimately almost led to the failure of the entire revision of the law. The focus of the discussions was the easy distribution of works made possible by digitisation. In essence, the revision was about how to better protect the works of cultural creators so that they can generate income, but at the same time it wanted to improve access to works for the public. It is obvious that these two core demands are difficult to reconcile and therefore a good Swiss compromise solution was necessary in many places.
"Since April 1, 2020, all photographs are now protected, regardless of whether they were taken by a professional photographer."
Extended protection of photographs
Individual character
Until now, only photographs with an individual character were protected. The distinction between a "snapshot" and a photograph with individual character was controversial and, as the two Federal Court decisions Wachmann Meili and Bob Marley showed, also rather difficult to classify.
Press photographers in particular were often left without protection, but most private snapshots also lacked copyright protection until now. This situation has been fundamentally changed by the revision. Since 1 April 2020, all photographs are now protected, regardless of whether they were taken by a professional photographer(Art. 2 para. 3bis URG).
This means that everyday family and holiday photos as well as press photos, shots of products and landscapes are now also protected by copyright.
Photos on social media
The previous photos enjoy a higher level of protection from now on. Uploading and sharing one's own photos is of course still permitted and unproblematic from a copyright point of view. Sharing photos in the form of a link is also permitted, provided the photo is not copied and saved independently at the same time. If the author deletes his or her photo, it may no longer be visible in the shared post.
Use of photos on websites
The extended protection also applies to photos taken before 1 April 2020. A photograph that has not been protected until now may therefore only be used with the consent of the author in the future. The further use of a photograph within the scope of the previous purpose is still permissible(Art. 80 para. 2 URG). A photograph that has already been used on a website and is not protected may thus continue to be used. However, if the website is renewed or used in a different way, the photo may no longer be used without consent. In general, only photos for which one has the corresponding rights of use should be used on one's own website. The risk for website operators has increased and it is therefore advisable to check the photos used.
Combating piracy
Cultural creators depend on their works being protected from unauthorised reproduction and use. In the course of the revision, the means against internet piracy were strengthened. However, personal use was not adjusted. Consumers of illegal file-sharing platforms are still not liable to prosecution when downloading protected works; only the illegal provision of films or music, for example, is punishable. This continues to be a difference to many foreign legal systems.
In the future, however, Internet hosting services will be held more accountable. Hosting services that create a particular risk of copyright infringement,
will in future be obliged to ensure that content once removed remains removed (so-called stay-down obligation). However, this only applies to content that has already been posted on the hosting service and its removal has been requested. The hosting services must take such measures as are technically and economically reasonable for them, taking into account the risk of such infringements(Art. 39d para. 2 URG). In contrast to the EU, however, no upload filter will be introduced.
In addition, the once contemplated blocking measures by access providers (so-called network blocks) did not make it into the law due to massive resistance. However, rightholders whose copyrights or related rights are infringed are now allowed to process personal data if this is necessary for the purpose of filing a criminal application or a criminal complaint and if they have lawful access to it(Art. 77i URG). This clarification was included in the URG because the collection of IP addresses is considered to be processing of personal data (cf. Logistep decision) and this had previously made the prosecution of internet piracy more difficult. Overall, there was therefore only a slight tightening.
Further adjustments
Extension of the use of orphan works to all types of works(Art. 22b URG)
Introduction of the video-on-demand remuneration(Art. 13a and Art. 35a URG)
The reproduction and adaptation of works for research purposes will be permissible in future - e.g. data mining(Art. 24d URG).
Libraries, archives, etc. can now publish excerpts of works. publish excerpts of works (e.g. table of contents and bibliography) from inventories(Art. 24e URG)
International agreements
Within the framework of the copyright revision, the Treaty of Beijing and the Treaty of Marrakesh were also ratified. Both are agreements of the World Intellectual Property Organization(WIPO), and the Beijing Treaty in particular contributes to the further harmonisation of copyright law. In the law itself, only selective adjustments were necessary, as Switzerland had already fulfilled the requirements in most points.
This article was written by RA Yves Gogniat.
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