A publishing company’s role is primarily to work in the interest of creators to make their work known to the public. When it comes to rights management by SUISA, it is irrelevant whether this publicity is achieved through the production and distribution of physical copies, through radio and television programmes, through concerts or through immaterial distribution via digital platforms.
The Swiss Association of Music Publishers (SVMV) has also confirmed that the main task of a publishing company is indeed no longer considered the release of a work. SVMV members have increasingly called for a model contract in which the general efforts of the publishing company to promote the use of the work in various ways is the focus, rather than the release of the work.
While digital copies can be considered work copies, in order to give publishing companies the freedom to structure their contracts with creators based on the needs of the contractual parties, the amended SUISA Distribution Rules forego any reference to the ‘work copy’ in the definitions for ’Publisher’ (Point 1.1.3.4) and ‘Subpublisher’ (Point 1.1.3.6), meaning these are formulated in a way that is technologically neutral.
Changes to the Distribution Rules
The new definitions are as follows:
Point 1.1.3.4 Publishers
1 Publishers are defined as natural or legal persons who:
– relying on contractual agreements concluded with authors, have acquired publishing rights in a work or an entire catalogue of works managed by SUISA, and
– acting alone or jointly with the authors, bring rights to SUISA for management, and
– perform publishing activities in fulfilment of their contractual duties.
2 To “perform publishing activities”, publishers must invest their own resources in promoting the use of musical works in their catalogue for which SUISA manages the rights.
1.1.3.6 Sub-publishers
1 Sub-publishers are defined as natural or legal persons who:
– relying on a contract with a foreign publisher, have acquired copyrights managed by SUISA in a work or an entire catalogue of works, and
– bring rights to SUISA for management, and
– exploit such rights in Switzerland and Liechtenstein in fulfilment of their contractual duties.
However, the new definitions now no longer correspond to the definition of publisher in the Swiss Code of Obligations (CO), which still stipulates the reproduction and distribution of the work as a characteristic service of the publishing company (Art. 380 ff CO).
While this may no longer be an obstacle for distribution, publishers who forego the production and distribution of copies have to be aware that in the event of a dispute, a court may not consider the relevant contract as a publishing contract in accordance with the CO, but rather as a simple mandate, which, unlike a publishing contract, can be terminated at any time (Art. 404 para. 1 CO). This may render the business development of the publishing company less predictable.
Nevertheless, this adaptation to meet the current situation in the music industry has been welcomed by the Distribution and Works Committee and the Board of Directors of SUISA alike, and has also been approved by the regulatory authority.
