SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
Swiss Copyright Act (see 3.2 Essential Elements of Copyright Protection ). The Federal Supreme Court holds the opinion that a work of applied art can only be protected by copy - right law if the respective creation reaches at least the threshold of protection under design law (“individual character”). A significant factor in determining pro - tection is therefore the absence of prior art and, for example, the influence of the design in question on the subsequent history of design art. Protection can also be supported by the fact that the design has a “surprising effect” on the observer, meaning that its purpose is not recognisable at first glance. In some cases, Swiss case law unfortunately still requires a so-called statistical uniqueness as a condition for protection. It remains unclear whether the Cofemel and Mio rulings and the Kwantum decision will have a liberalising and clarifying effect on Swiss case law. Databases can theoretically be protected as collec - tions of works, but rarely ever meet the necessary requirements for protection (intellectual creation with an individual character). A sui generis (neighbouring) right as introduced by the European Union (96/9/EG) does not exist in Switzerland. Unfair competition law can provide protection in the case of carbon copies According to Article 2 (1) of the Swiss Copyright Act, a work must fulfil the following conditions in order to be protected by copyright. • The work must be objectified and observable, although a physical fixation of the work in a tangi - ble medium is not required. For example, a speech cannot be protected while still only existing in a politician’s thoughts, but gains protection after the speech is held (even when not recorded). This requirement corresponds to the expression crite - rion of the CJEU, for example. that lack any own effort of the infringer. 3.2 Essential Elements of Copyright Protection • The work must be an expression of a person’s intellectual activity. Works that are results of non- human acts are therefore not protected under Swiss copyright law (eg, monkey selfies or AI crea - tions).
• The work must express individual character (origi - nality). The Copyright arises ipso iure in the moment of crea - tion without any formalities, and is held by the author who created the work (see 3.3 Copyright Authorship ). 3.3 Copyright Authorship Authorship is defined by Article 6 of the Swiss Cop - yright Act. The only condition of the attribution of authorship is that the respective person has created the work in question. No other requirements must be met. The work made for hire doctrine does not apply in Switzerland. However, Article 17 of the Swiss Cop - yright Act applies for the creation of computer pro - grams. The statute does not constitute a work made for hire doctrine; the copyright in computer programs is consequently held by the author. The rule merely constitutes a presumption (reverse burden of proof) that a creator fulfilling a labour or other contract in cre - ating the program grants an extensive right to use the work result (licence) to its employer or client. The rule corresponds to Article 2 (3) of Directive 2009/24/EG. No authorship can be claimed in a work that was not created by a human – eg, by artificial intelligence software or an animal. Authorship can, however, be claimed in works that have been created by a human using AI or animals as tools to create an own intel - lectual creation. Joint authorship arises from objective participation in the creation of a work combined with a subjective intention to collaborate. To give rise to joint author - ship, contribution must be creative: carrying out instructions without freedom for own creative choices cannot establish joint authorship. As a consequence of joint authorship, the copyright in the work is owned jointly by the co-authors. The co-authors can in general only dispose of the work jointly, and none of them can independently dispose of a share in the work. The co-authors are bound by the principle of good faith – they must, for instance, consent to the publication of the work (permission to use the work). An independent exploitation of the work
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