SWITZERLAND Law and Practice Contributed by: Beda Kaufmann, Alexander von Jeinsen, Daniel Raun and Laurent Riedweg, Advestra
11.3 Data Protection and Privacy Considerations
(see 7. Foreign Investment/National Security ), IP and – more generally – non-tangible assets may become a more important factor in the context of FDI screening. As noted previously, the relevant criteria for FDI review procedures – pursuant to the draft FICA – include whether the investor could gain access to security-rel - evant information as a result of an acquisition, which may include IP. SECO would also need to assess whether the services or products of the target could be replaced within a reasonable time, which may not be the case if such services or products are protected by IP rights. Given that the criteria contained in the draft bill are non-exhaustive, other considerations regarding IP rights could be taken into account. 11.2 Intellectual Property Protections Swiss law recognises various types of IP rights such as patent rights, rights in trade marks and designs, as well as copyright. These rights are governed by federal statutes and international agreements (eg, the Paris Convention, the Berne Convention, the Madrid Protocol, the Patent Cooperation Treaty and the Hague Agreement). In general, the standard of pro - tection of IP rights in Switzerland can be considered very high and there are generally no particular issues or limitations regarding protection and enforcement. Works created with the use of AI may enjoy protection to the extent they constitute intellectual creations in the sense of Swiss copyright law – ie, are based to a significant extent on human authorship. Accordingly, works that are entirely or predominantly AI-generated are not copyrightable under Swiss law. Patents, trade marks and designs must be registered with the Swiss Federal Institute of Intellectual Property (IPI), whereas copyright protection does not require registration. It should be noted that software is gener - ally protected only by copyright and not by software patents as in other jurisdictions.
Data protection is governed by the Federal Data Pro - tection Act (the “Data Protection Act”) and its ordi - nances. The revised Data Protection Act and related ordinances – which align Swiss data protection legis - lation with the GDPR to a greater extent – came into force on 1 September 2023 and has an extraterritorial scope. It thus applies to data protection matters hav - ing an impact on persons in Switzerland, even if such matters were initiated abroad. Under the revised legislation, a number of violations of the Data Protection Act or lack of co-operation with the Federal Data Protection and Information Commis - sioner can result in criminal fines of up to CHF250,000 against responsible individuals, provided they acted intentionally. In addition, under Swiss civil law, the data subject may apply for injunctive relief and may file a claim for damages as well as satisfaction and/or surrender of profits, based on the infringement of the data subject’s privacy.
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