The newly revised Swiss Act on Copyright and Neighbouring Rights (the “Copyright Act”) came into force on 1 April 2020. The revised Copyright Act introduces among other amendments a controversial novelty: the protection of photographs lacking individual character. Internet players who reproduce third-party images, including product pictures, on their websites will do well to heed this legal development, especially if their online activities target the Swiss market.
Background
Photographs with individual character already enjoyed copyright protection before the latest revision of the Swiss Copyright Act. Today as in the past, the Copyright Act protects “all intellectual creations with individual character, irrespective of their value or purpose” (art. 2 § 1 SCA), and mentions “photographic works” in the list of protectable works (art. 2 § 2 let. g SCA).
In a 2003 decision, the Swiss Supreme Court had recognized the individual - and thus protected - character of a snapshot of the singer Bob Marley taken during a concert1. However, just a few months later, the Supreme Court denied such character to a photograph of a bank security agent posing with documents from the time of World War II that he had saved from destruction. Despite its undisputed historical importance, the photograph was found to lack individual character, partly because the author – a journalist – stated that she happened to be at the right place and at the right moment2.
These seemingly irreconcilable decisions led to uncertainty about the protection of photographs, especially press pictures. The first draft of the revised Copyright Act featured a special protection for press photographs, regardless of their individual character. In the course of the ensuing consultation and parliamentary debates, this provision was abandoned and replaced by the new art. 2 § 3bis SCA, which assimilates to protected works all photographic depictions of three-dimensional objects, even if they do not have individual character3.
Protection for all photographs of 3-D objects made by a human being
The new art. 2 § 3bis SCA applies to all photographs of three-dimensional (3-D) objects, which excludes photocopies or reproductions of texts, plans or other bi-dimensional documents. The intervention of the human hand is also required, as copyright protection is only for “intellectual creations”. Photographs made by radars, surveillance cameras and the like remain therefore unprotected.
These restrictions aside, all photos of 3-D objects now enjoy copyright protection, including in particular non-individual press photos, and also commonplace holiday and family snapshots, photos of landscapes, buildings, plants and animals, or product pictures.
Authors of photographs enjoy all the economic and moral rights deriving from copyright protection. They may decide in particular whether and when their work may be published, whether it may be reproduced and/or modified, and if their name must be cited. The only difference with the general regime concerns the period of protection: whereas works (including photographs) with individual character enjoy protection for a period of 70 years from the author's death, photographs without individual character are protected for 50 years from their creation. Whether or not a photograph possesses individual character will therefore remain an issue when the period of protection is at stake.
While the new art. 2 § 3bis SCA applies to photographs created before the entry into force of the revised Copyright Act, uses that have already commenced before April 1, 2020 may continue without a necessity to seek the author's consent. On the other hand, all new uses of non-individual photographs created less than 50 years ago will now require the author's consent, and unauthorized reproduction may expose the user to an infringement claim.
The purpose of the revision of the Copyright Act was to bring it in line with the digital world. On the subject of photographs, the Swiss government expressed the view that the Internet aggravated the unauthorized use of photographs with social value (such as press photographs) or of high quality pictures of products, given the ease of reproduction. The revision will actually impact Internet players in several respects.
Design of websites
Under the revised Copyright Act, it is no longer permissible to enhance the attractiveness of one's commercial website with photographs of mountains, beaches, city lines or flowers taken from a third-party website or social network account without obtaining the author's consent, even when the photograph seems of the most banal kind.
If the name of the author is not available, caution will dictate to refrain from using the photograph. Website owners who want to be on the good side of the law in Switzerland will therefore either create their own photographs or - if they do not climb mountains or fly to the Seychelles for the ideal sunset – commission a photographer, purchase licences for stock photos from paying databases or use images from free photo databases.
Uploading and sharing photographs on the social networks
Because all photographs now enjoy copyright protection, uploading any snapshot to Instagram, Facebook or Pinterest – or sharing it with others – requires in principle the author's authorization, unless the use may qualify as “private use”. The Swiss Copyright Act provides indeed that use of a protected work for a personal purpose, i.e. within a limited circle of relatives or friends may take place without the author's consent and does not entitled the author to remuneration. Obviously, commercial players who post photographs on their Instagram or Facebook account are not making a personal use of the photographs, and they will not be able to avail themselves of this restriction to copyright. On the other hand, the use of photographs on the accounts of individuals are more likely to satisfy the condition of private use, especially if access to the account is restricted. Whether use of a photograph on a public account may qualify as private use remains open to discussion.
This being said, the sharing and dissemination of photographs posted on Instagram and other similar networks may be said to be part of the DNA of these platforms, and it one may surmise that many amateur photographers will not avail themselves of their new prerogative4.
Marketing of products
Photographs of products may possess individual character even when they depict products in a seemingly neutral way. The choice of the light and shadows, the camera angle, the background, the possible filters etc. are the results of a creative process. However, absent special effects that create an “artistic” look, whether or not a product picture did satisfy the condition of the individual character was often uncertain before the revision of the Copyright Act.
Under the new law, the reproduction of product pictures without the right-holder's consent will clearly be illegal under Swiss law, regardless of their quality.
This new protection might prove useful for brand owners who operate exclusive or selective distribution networks. While in most countries the brand owner may not invoke its trademark rights to prevent the sale of authentic goods on third-party platforms outside the network, grey market sellers who copy product pictures from the brand owner's website and reproduce them on their platforms can be liable for copyright infringement when the pictures enjoy copyright protection. For instance, vendors who sell third-party products on Amazon or similar platforms infringe upon the copyright of the photograph's author (or of its assignee) if they advertise their products with protected photographs taken from the brand owner's official website or account on Amazon. Under the revised Copyright Act, the use of such photographs without authorization would always be illicit, without any necessity for the brand owner to prove the individual character of the images.
As was already the case before the revision, brand owners should make sure that they are able to prove their ownership of the copyright: this entails documenting the chain of title by asking the photographer to assign its copyright to the photographs in writing to the brand owner, especially if the photographer is not an employee.
Limited impact in international disputes
The Swiss Copyright Act creates a new category of protected works that does not seem to exist as such in other countries5. It is therefore doubtful that the protection afforded by Swiss law to photographs lacking individual character will be enforceable in an international context, because the law of the country where protection is claimed is usually applicable, and such law may not recognize this particular category of works6. In other words, the new protection will be useful when the unauthorized use takes place in Switzerland.
When use of intellectual property rights occurs on the Internet, Swiss courts have until now required a particular link between the concerned website and the Swiss market in order to accept their jurisdiction and to consider that the right at issue is used in Switzerland (even though the Swiss Supreme Court left this question open in a 2007 decision7). Typically, such special link may exist when the disputed use takes place on a website with a .ch or .swiss domain name, and/or when such website indicates prices in Swiss francs or mentions that delivery in Switzerland is available. Thus, the mere accessibility of a website from Switzerland is normally not a sufficient basis for jurisdiction8 or infringement9. The new protection afforded by the Copyright Act to photographs without individual characters is therefor likely to be of little help when the photograph is used on a foreign website without a particular nexus to Switzerland.
Footnotes
1. 130 III 168 – Bob Marley.
2. 130 III 714 – Christoph Meili.
3. Art. 2 § 3bis SCA: “Photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character.”
4. W. Egloff, Neues in Neuen URG, in Anwaltsrevue 2020, p. 273 et seq.
5. Germany and Austria have introduced a protection for photographs but in the form of a neighbouring right, and not as an extension of copyright.
6. P. Mosimann/Y. Hostettler, Zur Revision des Urheberrechtsgesetzes, recht 2018, p. 123 et seq.
7. Swiss Supreme Court, 6 March 2007, 4C.341/2005, in sic! 2018, p. 543.
8. Tribunal of Commerce of St-Gall, 25 March 2010, HG.2008.137, in sic! 2010, p. 789; Court of justice of Geneva, 12 February 2016, ACJC/176/2016, in sic! 2018, p. 405.
9. Tribunal of Commerce of Zurich, 27 May 2019, HG160073-O.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
