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.
All "works" in the sense of the law, i.e.
"creations of the mind, literary or artistic, that have an individual character"
are automatically protected by copyright, irrespective of whether copyright is asserted or
not, but provided that it passes the threshold of originality necessary to constitute a
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.
A first revision of the law occurred in 1922. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It extended the duration of copyright to 30 years after the (last surviving) author's death (30 years p.m.a). This extension was retroactive (§62 of the 1922 law) and even placed works under copyright again if the copyright
granted under the previous law had already expired. Anonymous or pseudonymous works were copyrighted for 30 years since they had been made known to the public, unless the author's identity was acknowledged within that time, in which case 30 years p.m.a. applied again. Works that became known to the public only after the death of the author were copyrighted
until the shorter of 50 years after the death of the author or 30 years since they became known. The law covered works of the literature and the arts, including scientific works, maps, and photographs.
In 1955, a revision of the 1922 law extended the copyright term from 30 to 50 years. This extension was not retroactive and applied only to works that were still copyrighted in 1955.
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.
Duration of protection
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.
The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable.
Works of unknown authors enter the public domain 70 years after the date of publication (even if the author is identified once the protection has ended).
Swiss law also protects performers' rights; the duration of protection is 50 years, starting from the end of the year when the work was performed.
Laws, decrees, international treaties or other official acts, decisions, protocols or reports by public authorities, pieces of currency and patents or patent applications are ineligible for copyright by law.
It follows that photographs taken from or of these documents are also in the public domain.
A photograph of an official document may constitute a protected work of its own if the photograph is sufficiently original;
A photograph taken from an official document may have been copyrighted by someone other than the state and been reproduced with permission in the official document.
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.