SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
necessary requirements for protection (intellec - tual 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 that lack any own effort of the infringer. 3.2 Essential Elements of Copyright Protection 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 observ - able, although a physical fixation of the work in a tangible 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 criterion of the CJEU, for example. • 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 self - ies or AI creations). • The work must express individual character (originality). The Copyright arises ipso iure in the moment of creation without any formalities, and is held by the author who created the work (see 3.3 Copy- right Authorship ). 3.3 Copyright Authorship Authorship is defined by Article 6 of the Swiss Copyright Act. The only condition of the attri - bution of authorship is that the respective per - son 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 Copyright Act applies for the creation of com - puter programs. 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 presump - tion (reverse burden of proof) that a creator ful - filling a labour or other contract in creating the program grants an extensive right to use the work result (license) 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 intel - ligence 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 intellectual creation. Joint authorship arises from objective participa - tion in the creation of a work combined with a subjective intention to collaborate. To give rise to joint authorship, contribution must be crea - tive: carrying out instructions without freedom for own creative choices cannot establish joint authorship. As consequence of joint authorship, the cop - yright in the work is owned jointly by the co- authors. The co-authors can in general only dis - pose 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 is only permissible if the contributions to the work as a whole are separable, because they belong to different work categories (eg, text and illustrations of a book).
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