Intellectual Property Rights
The copyright law of Switzerland is based on the concept of "author's rights" and is similar to the French copyright law, instead of the concept of Copyright used in common law jurisdictions. The first federal copyright law in Switzerland was passed by the Swiss parliament on April 23, 1883 and entered in force on January 1, 1884. Two years later, Switzerland was a founding member of the Berne Convention for the Protection of Literary and Artistic Works, which became effective on December 5, 1887. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992.
In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty in the act. The law compliant with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) was approved by both chambers of the Swiss parliament on October 5, 2007. At the same time, the parliament also ratified the Swiss adherence to the WCT and the WPPT. Copyrights in Swiss law last for 70 years after the death of the author (50 years after the death of the author for computer programs).
As a result of the non-retroactive revision of 1992, when the 50-year copyright term was extended to 70 years, works that were already in the public domain in 1993, when the new law started being applied, do not benefit from renewed protection; therefore, all works made by authors deceased in 1942 or before are in the public domain in Switzerland.
In the case of photographs, the level of protection has been defined in two decisions of the Swiss Federal Supreme Court, the Bob Marley case (2003) and the Meili case (2004).
The first copyright legislation in Switzerland was
introduced during the times of the French occupation in the Napoleonic era. Geneva, which
joined the Swiss Confederacy in 1815, kept the French legislation (a law that dated to
1793) and thus became the first canton to have a copyright law.
The first copyright law developed locally in Switzerland was that of the canton of Ticino, which became effective on March 20, 1835. In the canton of Solothurn, a copyright law entered in force in 1847.
The first constitution of Switzerland of 1848 left copyright issues to the cantons; only in the revised constitution of 1874 did copyright become an issue of federal legislation.
In 1992 a new copyright law was passed. It entered in force on July 1, 1993 and extended the copyright term again non-retroactively to 70 years.
Copyright protection for most protected works expires 70 years after the death of the
author. Computer programs are protected for 50 years after the death of the author. The 50
or 70 years of protection are counted starting at the end of the year when the author (or
last author) died.
The protection also expires if the death must be assumed.
Only "works" that are "creations of the mind, literary or artistic, that have an individual character", are protected by copyright.
What exactly individuality (also referred to as
originality) means for photographs has long been a focus of dispute.
Bob Marley decision - copyrighted as it was a "creation of the mind"
In its 2003 Marley decision, the Federal Supreme Court
found that the picture at issue (shot by a spectator with a handheld camera) had the
required individual character by virtue of the aesthetic appeal of the picture, combined
with the orientation of the picture's components and the distribution of light and shadow.
It also found that it was a "creation of the mind" by being
shot at a specific time during the singer's movement on the stage. Accordingly, the Court
held that the picture was protected by copyright.
Christoph Meili decision - not copyrighted for lack of an individual expression of thought.
In its 2004 Meili decision, the Court found that the picture at issue, shot by a reporter to document Christoph Meili with the files he had taken from his employer, lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use. The
Court held that the image was not copyrighted for lack of an individual expression of thought.