Author's rights
On 1 April 2020, the revised Copyright Act came into force. Among other things, the Act contains the following changes:
The law introduces new anti-piracy measures:
Under certain conditions, hosting platforms are henceforth obliged to durably prevent unlawful content from being remade available through the use of their services (stay down obligation, Article 39d CopA); moreover, rightholders may process personal data insofar as this is essential for the purpose of criminal prosecution (Article 77i CopA).
Certain measures are designed to improve collective rights management:
Users must provide the collective rights management organisations with the necessary information in an electronic form allowing for automatic data processing (Article 51(1) CopA); collective rights management organisations are entitled to exchange the information provided by users with one another (Article 51(1bis) CopA); accelerated procedure for tariff appeals before the Federal Administrative Court (Article 74(2) CopA); and the Federal Arbitration Commission responsible for approving tariffs is now entitled to hear witnesses (see new Article 14(1)(h) of the Federal Act on Administrative Procedure).
Lastly, the notion of an “extended collective licence” has been introduced into Swiss law (Article 43a CopA):
Collecting societies can now grant a blanket authorisation for certain uses, even for rightholders they do not represent contractually; this enhances the legal certainty for users and secures additional remuneration for rightholders. This option applies to uses which cannot be individually controlled by rightholders; collecting societies would act as an “insurance” (of a sort) for users. This is a welcome innovation (already applied in Scandinavian countries) which underscores the role of “facilitator” often played by collective rights management organisations.
Extension of the term of protection for related rights (Article 39 CopA)
The term of protection for related rights was extended from 50 years to 70 years from the publication of the recording. This innovation applies to music and films – in contrast with the EU where the extended term only applies to music.
Introduction of video-on-demand remuneration (Articles 13a and 35a CopA)
Films and series are primarily made available via internet platforms (video on demand). Accordingly, the revised Copyright Act provides that authors (directors and screenplay writers), and performing artists (actors, dubbing artists) are entitled to remuneration for the use of their works and performances. VoD remuneration is collected directly from the VoD providers by the collective rights management organisations.
Collective management: The reason why collective rights management organisations are necessary
The Federal Copyright Law (URG) is based on the view that the rights accruing to authors are essentially the responsibility of the rightholders to assert for themselves. The Federal Copyright Law only envisages collective management by collective rights management organisations in circumstances where mass utilisation makes direct management virtually impossible. These societies are bound by law to assert the rights pertaining to their area of activity and thus to act on behalf of the rightholders they represent.
Wide-ranging powers
Within the collective management, a distinction is made between the utilisation of exclusive rights themselves (e.g. the right of cable TV providers to rebroadcast the television signal to their customers via cable) and the mere assertion of the entitlement to remuneration (e.g. the individual’s right to make a copy of a music CD for their use). Exclusive rights have absolute effect and enable the collective rights management organisations to prohibit utilisations. Entitlements to remuneration on the other hand solely grant an enforceable monetary claim.
