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Other issues

The revision of the copyright law raises questions primarily in regards to the ratification of the WIPO Internet Treaties, although other issues are being discussed as well.

 

Copy machine levy | Open source software | Public lending right | Recording for purposes of time shifting | Rights to works made for hire | Right to resale | Temporary (ephemeral) copies

Copy machine levy

Up until now royalties have been owed only for blank recording media (e.g., CD’s and DVD’s) and for photocopying in schools, libraries and businesses. The copy machine levy would mean that royalties would have to be paid for machines which can be used for reproduction, such as photocopiers, CD burners, or PC’s.

 

Artists and performers would welcome implementation of a (combined) copy machine levy in the hopes of being adequately remunerated for the digital use of their works as well. They point out that the way the work is used would be considered in the calculation of the remuneration and multiple royalties would not be a danger.

 

Producers of such equipment are against creating a copy machine levy because it would make the machines more expensive and would not be specific to the reason for the levy. Users and consumers are afraid of multiple royalty payments because remuneration would be compulsory for both blank recording media and the recording machines. In addition, they wouldn’t take the storage of personal, non-copyrighted content into consideration.

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Open source software

Open source software is distributed under a license granting recipients access to the source code and the right to modify, copy, and distribute the software. This differs from traditional software licensing agreements where copyright is used to restrict the rights of users. Instead, users of open source software have the right to make changes. However, authors keep their copyright precisely to defend the rights granted to users and thereby create new business opportunities.

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Public lending right

The copyright act contains a provision regarding the rental of works. Whoever rents out books, CD’s, DVD’s, etc. must pay author royalties. However, under the current law, loans through institutions such as public libraries are exempt from paying royalties. This is not the case under the new European law where the public lending right has already been implemented. Should Switzerland follow suit?

 

Those in favor of the public lending right see it as a fair balance between the interests of the rights holders, who want to be appropriately remunerated for the use of their work, and the interest of the public to information. Books which are borrowed are not purchased, and that is exactly why authors of fiction and poetry are at a greater disadvantage than other authors. They are not remunerated for their works.

 

Those who are against the public lending right see further financial burden for libraries and greater impediments to the dissemination of knowledge. They feel that contrary to hurting the author, the library’s royalty-free loans are free advertising for the author’s work. They also argue that at university libraries, the works which are loaned out tend to be by authors who have already been paid by the university for their research activity. Additional remuneration would be unjustified.

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Recording for purposes of time shifting

Broadcasters do not need authorization for using phonograms and videograms under related rights in today’s law; they simply pay royalties. If the phonograms and videograms are not directly used for a broadcast – as commonly occurs today – but stored on a server, according to the federal court the broadcaster is required to get permission from the performers and audio producers to store the work in addition to paying the royalty for broadcasting. However, the federal court views this as unsatisfactory. It has therefore requested Parliament to include a regulation setting a single tariff with the responsible collecting society for the right to record and broadcast work at a later time. Music authors and publishers are critical of such a solution. The phonogram producers reject it because in their opinion it is a disentitlement.

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Rights to works made for hire

According to the current law, natural persons who create or perform a work are entitled to copyrights or related rights. Employers or commissioning bodies must contractually cede these rights.

 

Broadcasters and industry find this regulation inappropriate because it does not take into account the party which takes the financial risk for the production of a work. In addition, the small and medium-sized enterprises which are often the ones involved do not have the necessary juridical knowledge to regulate the issue contractually. They are demanding the so-called rights to works made for hire, which automatically creates rights for employers, commissioning bodies and producers.

 

Authors and performing artists view this right as abandoning contractual freedom unnecessarily and as an encroachment on the standard collective contract used by the cultural and entertainment branches. In addition, it is a disadvantage to weaker employees and contractors, especially freelance artists and authors, and leads to disentitlement of the authors and performers.

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Right to resale

The right to resale is meant to assure painters, sculptors and graphic artists a portion of the economic profit whenever their works are resold on the fine arts market. The EU implemented this right in the year 2001. In Switzerland, this right is heavily contested.

 

Artist lobby groups are demanding this right. They argue that fine artists are disadvantaged in relation to other authors because they are allowed to profit only once from the sale of their original work under today’s law. In addition, they are in a worse position than EU artists. Investors, art dealers, and those otherwise involved, as well as some artists, object to the artists resale right. The Swiss art market is economically important and holds a leading position internationally. Implementing a right to resale would endanger its position and generally damage Switzerland’s economic standing.

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Temporary (ephemeral) copies

In transferring digital content, many copies are technically necessary (such as in caching) but represent no financial significance. Access providers are exposed to a considerable risk of being charged with copyright infringement through this because it is practically impossible to prevent unauthorized reproduction. An exception for such copies, based on the EU solution, would limit provider responsibility in the interest of the efficient use of modern communication systems.

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