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Second attempt to review the Swiss Copyright Act

The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne Convention of 1879 was the first international Treaty on copyright. Today, nothing is left of the pioneering role Switzerland once held.

Quite the contrary: The existing Swiss copyright law was enacted after 30-year-long discussions upon the pressure by the USA on 01 July 1993. Important trade agreements with the USA would otherwise not have been possible to implement. A similar situation occurred during the partial review of the Act in 2006.

An adaptation of the copyright law to technological developments is now due. The European Union has also been holding discussions on this topic for a while. On 14 September 2016, the European Commission has tabled a proposal for a directive on copyright in the digital single market. In the EC directive, current problems such as “liability of internet service providers” were addressed at least.

Review of the Swiss Copyright Act 2011 launched

In Switzerland, the progress made by the review of the Copyright Act and the alignment of the legislative provisions to the current exploitation forms in the digital world has been rather sluggish. To recap: The trigger for the current conversations on an update of the Swiss Copyright Act had been the reply by the Federal Council in August 2011 to a Postulate by the Ständerätin (Councillor for the Council of Cantons) Géraldine Savary.

At the time, the Federal Council was of the opinion that Existing legal provisions would satisfy current options for digital usage. Authors would have to exploit the existing legal possibilities more thoroughly and equalise their lost income from internet piracy by other means: for example by giving more live concerts, in order to offset the lower income from sales of sound recordings.

This type of reply led to an outcry among the rightsholders. Known authors and musicians, specifically from the rock/pop sector, joined forces under the umbrella of the powerful association “Music Creators Switzerland”. The producer associations Audiovision Schweiz and IFPI founded the “Alliance against internet piracy”, together with the collective management organisations and other partners.

The AGUR12 Compromise

Federal Councillor Sommaruga finally gave in to the concerted demands for measures to be taken: In the summer of 2012, she initiated the working group copyright 2012. The “AGUR12” had the following task: “Show options to align copyright law with the technological developments. These include identifying and remedying of usage limitations and competitive barriers, guaranteeing a fair and adequate remuneration for the usage of content protected by copyright and the fight against piracy. On the other hand, collective management must be evaluated in terms of identifying areas for increasing efficiency and lowering costs.”

At the end of 2013, AGUR12 closed their project with recommendations which were carried by all participants. One could thus call it an “AGUR12 compromise”. The demand for implementing the recommendations remained an evident topic for the Federal Council: Subsequently, various circles submitted proposals to the parliament which were answered by the Federal Council referring to the impending legal review and thus postponed to a later date.

Preliminary draft and consultation

In December 2015, the Federal Council presented a preliminary draft for the legal review, which entered the consultation process until the end of March 2016. What was particularly bothersome with this preliminary draft was the fact that while it followed the recommendations of AGUR12, further proposals from administration itself had been added; for example, a more extensive and stricter supervision over collective management organisations. SUISA replied with an extensive statement and provided specific wordings for improving the legislative text.

More than 1,200 statements and opinions were submitted during the consultation process. Those from libraries and archives (about 400) all have the same message. They demand simple possibilities to make their archives accessible. When it comes to rights exploitation issues, they blame the collective management organisations for any difficulties that arise in this context. It is, however, the latter who enable certain usages by bundling rights together.

AGUR12 II initiated

The Federal Councillor in charge had to realise this summer that the consultation draft was coming under fire from all corners and was still far away from a solution carried by the majority. She therefore wishes to offer the affected parties to find a solution that can be carried before the Federal Council can decide on the next steps in the legislative process.

On 30 August 2016, Federal Councillor Sommaruga thus initiated the working group AGUR12 II. The working group has now got additional stakeholders, representing the interests of internet providers and experts from the Federal Office for Justice. AGUR12 II is thus tasked with working out specific legislative proposals in line with the compromises determined by AGUR12, which have been in place for more than 2 years now.

The new AGUR12II has, in the meantime, started with its activities. In the first meeting, it became apparent that the members deal with the different interests and positions in a focussed and constructive manner. As a consequence, further sub-groups were created with the aim to prepare specific legislative proposals in a smaller but representative circle. The results are expected to be ready by the end of 2016.

Legal review thrown back by 30 months

Collective management organisations are active on behalf of authors within the AGUR12 II working group. Their representatives hold the necessary legal knowledge in order to formulate legislative provisions. A modernised copyright with fair framework conditions for rightsholders is one of the core aims of the Cooperative Society for Authors and Publishers of Music: SUISA readily offers its expert knowledge and collaborates actively in the working group.

By initiating the AGUR12 II working group, the copyright legislation review in Switzerland has been set back by 30 months. Back to square 1, where AGUR12 finished with its recommendations at the end of 2013. One can’t help but get the impression that the government’s ideas on trade and agricultural policies are clearer than those on copyright. That is a real shame, even more so when Switzerland, as a veritable nation of culture, once excelled as a pioneer of the rights for the protection of authors.

Related articles
Copyright: Quo vadis? In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Read more
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The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne...read more

Copyright: Quo vadis?

In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Text by Vincent Salvadé

After a partial review in 2008, it is planned to review the Swiss Federal Act on Copyright and Related Rights once more. (Photo: Manu Leuenberger)

SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Some suggestions of the draft for the copyright revision now need to be criticised, while others endanger the compromise that other interested circles have reached.

Three areas need to be given particular attention:

Private copying

In Switzerland, the copying of works for private purposes is usually allowed by law and is also remunerated via a levy on blank media. The major advantage of this system is that it does not criminalise consumers, something that AGUR12 also reiterated. The relevant remuneration and levies do, however, have to be constantly adapted to the current circumstances.

At the same time, private copying has been undergoing change. In the music sector, downloads have increasingly been replaced by streaming. Nowadays, music is being listened to online instead of downloaded. While listening to music, the copying process on the end device of the consumer (smartphone, tablet etc.) now only stretches over a very short period. The permanent reproduction takes place elsewhere, on remote servers (key word: “Cloud computing”).

SUISA believes that neither current legislation nor the draft of the URG (CopA) revision accommodates the new developments appropriately. SUISA is thus going to submit modernising suggestions in the course of the consultation.

Collective rights management

The Federal Council plans to extend the supervision of collective rights management, namely at two levels: On the one hand, the supervision shall comprise the entirety of activities of collective management organisations (CMOs), irrespective of which sector they cover; on the other hand, the Swiss Federal Institute of Intellectual Property (IPI) shall not only check the legality of rights management but also its adequacy in future.

CMOs have been founded by rightsholders in order to defend their rights. As a consequence, only rightsholders should be able to decide on the operation of its CMOs. The planned expansion of the supervision would be problematic from a constitutional law aspect.

In order to safeguard a correct collective rights management, today’s controls are more than adequate: first, by the members via the society’s internal bodies and committees, second, via external auditors, third, via the IPI which is confined to the legality of the administration and areas with a dominating market position of CMOs, and fourth, via tariffs which are controlled by the Federal Arbitration Commission for the Exploitation of Copyright and Related Rights.

Why should the government thus interfere in the personal transactions of authors and other rightsholders? The affected parties had not requested anything to this end. Furthermore, a recently published expert analysis which has been published on behalf of the IPI confirmed that CMOs work efficiently and have their costs under control. As a consequence, this kind of expansion of the supervision by the government must be rejected.

On the other hand, SUISA welcomes the suggestion by the Federal Council that an extended collective licence should be introduced in Switzerland. This is a type of statutory provision which is already known in Nordic countries. Thanks to the collective licence, the CMO could represent rights holders which are not members. For such rightsholders, licensing agreements which have been concluded between CMOs and users of works shall apply unless they explicitly pull out from such agreements (“opt out”). It would thus be possible to legalise the mass usage of works – something that is paramount in the digital age – in order to be able to pay rightsholders their due remuneration. The latter do, however, continue to have the freedom to opt out from such licensing agreements.

Anti-piracy measures

SUISA supports the measures suggested by the Federal Council to combat piracy. They are the result and an important component of the compromise of AGUR12. The proposals are based on the contributions of the access and host providers. They would have to delete illegal contents under certain conditions, prevent such contents from being re-uploaded, to block access to piracy sites or to point their action out to relevant users in the case of copyright infringements.

This type of system does, however, mainly rely on self-regulation. SUISA therefore believes that the law should have a higher minimum standard than provided in the legislative proposal. In addition, certain measures are only possible if the works are already on the market in Switzerland. In other words: Illegal online offers of a film which is not available in Switzerland yet, would be less severe than in the case of a DVD which can already be purchased anywhere in the shops… The desire of the consumer to get access to a bigger number of legal offers is understandable. In this context, innovative enterprises do, however, have to be protected from unfair competition by illegal providers.

There is another gap: If the explanatory notifications by the access providers to the infringer bear no fruit, the rights holder could use legal means to find out about the identity of the illegal providers. In order for this step to be available, two such notifications must turn out to have been futile within a year. In other words: Rights holders are asked to tolerate the infringement of their rights for a whole year, before intervening steps are taken … This is hardly acceptable.

Conclusion

The impression prevails that the Federal Council has taken the recommendations of AGUR12 on board but then complemented them ad lib. It surely is a good thing that political visions influence the development of copyright to a degree. On the other hand, copyright repeatedly finds itself as the focal point of various interests: those of authors, consumers, the industry etc.

The compromise established by AGUR12 has the advantage that it safeguards a balanced development of the legal framework – which has been accepted by the affected parties. It is thus vital that this compromise is not put at risk. Otherwise, the CopA review is in danger of getting stuck …

Additional information:
SUISA works cost efficiently (SUISAblog, 13.01.2016)
SUISA members’ freedom is at stake (SUISAblog, 20.11.2015)

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In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Text by Vincent Salvadé

After a partial review in 2008, it is planned to review the Swiss Federal Act on Copyright and Related Rights once more. (Photo: Manu Leuenberger)

SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Some suggestions of the draft for the copyright revision now need to be criticised, while others endanger the compromise that other interested circles have reached.

Three areas need to...read more

SUISA is working cost-consciously

Last year, SUISA and the other Swiss collective management organisations (CMOs) have invested time and money into a cost analysis which had been requested by the federal government. The results of the study are now available. At hardly anyone’s surprise, study reveals that the Swiss CMOs work efficiently and have their costs under control. Nevertheless, the Federal Council demands a stronger control of the collective management organisations in its proposal for the copyright law revision. This is not just unnecessary, but actually absurd, as a closer look at the study results reveals. Text by Andreas Wegelin, CEO

SUISA is working cost-consciously

A study of the IPI confirmed that SUISA and the other Swiss collective management organisations have their costs under control (Photo: Giorgio Tebaldi)

What is the study about?
The supervisory authority of the Swiss CMOs, the Swiss Federal Institute of Intellectual Property (IPI), has, upon the recommendation of the Swiss Federal Audit Office (SFAO) commissioned an in-depth study in early 2015 with the objective to investigate whether the costs of the CMOs are adequate. The study was conducted between February and December 2015 by experts of the Fernfachhochschule Schweiz (distance learning technical college, FFHS), the consultancy firm SERVUS GmbH and the Zürcher Hochschule für Angewandte Wissenschaften (University of Applied Sciences in Zurich, ZHAW).

In the study, the administration costs of the five Swiss CMOs ProLitteris, SSA, SUISA, Suissimage and Swissperform were compared to non-profit organisations (NPOs), insurances and foreign CMOs. Furthermore, the salaries within CMOs were compared to those of public administration, insurance and banks.

The basis for the study were publicly available data from annual / financial reports of the organisations, on the one hand. On the other hand, detailed finance and organisational data were evaluated that had been provided by the CMOs or obtained via surveys among the organisations. The analysis covered material from the years 2008, 2012 and 2014. The costs for this exhaustive study was carried by the CMOs.

What were the conclusions of the study with regards to the administration costs?
The in-depth analysis confirms that the administration costs of the CMOs are generally adequate and are within the range of comparable sectors. There is a similar picture with regards to salaries: They are in a similar range or even lower than those of the public administration and insurance sector. The study concludes: “Based on the analysis undertaken there is no cause for concern that there are significant shortcomings related to the cost management of the collective management organisations.”

The study also reveals the sometimes rather major differences between the CMOs in terms of the relevant administration cost and salaries, and explains those further. The reasons for this are, for example, due to the fact that the business activity and the legal mandate varies from CMO to CMO. Furthermore, the CMOs differ in terms of work repertoire processed, licences granted and tariff bases.

Last, but not least, the study offers valuable information regarding room for improvement to the CMOs. There is, for example, room for savings in cases where newly negotiated tariffs are structured in a simpler manner and processes can thus be automated. In order to achieve this, the help of negotiating partners is required, as the tariffs are agreed upon after negotiations with the relevant user associations. The study also recommends to evaluate potential synergies for an even closer cooperation. The CMOs intend to consider these recommendations and derive suitable actions from them.

SUISA looks good in terms of its administration cost and salaries. Does this mean there’s no need for any further action?
There is always room for improvement – this applies to every enterprise. SUISA also constantly aims to keep its costs low, to improve its efficiency and thus to be able to pay out as much as possible to its members – composers, lyricists and publishers of musical works. As a consequence, cost control and raising efficiency are central points in SUISA’s strategy. SUISA constantly evaluates and streamlines its business processes. IT forms one important aspect: By means of online registration and information platforms, processes can be simplified and costs can accordingly be saved. Last year, the introduction of an online portal for SUISA members constituted an important step in that direction; the portal continues to be expanded in terms of its functionalities. Similar projects have been launched in the customer area.

There is also potential for savings with regards to tariffs. On the one hand, SUISA seeks to standardise its tariffs as much as possible. SUISA can, however, only implement this step to a limited extent due to the fact that the tariffs are not devised unilaterally by SUISA but are subject to negotiation with the user associations. In the case of tariffs where such a simplification is feasible, SUISA is seeking to implement this as much as possible.

The study confirms that the five CMOs ProLitteris, SSA, SUISA, Suissimage and Swissperform work well from a general perspective. Is the stricter control on the CMOs as requested by the Federal Council therefore appropriate at all?
No, there are three reasons why the requested stricter control is unnecessary and incomprehensible. First of all, the administration cost analysis shows that the CMOs look good in terms of their cost and salaries. A stricter regulation would be appropriate if the organisations in question would run their businesses badly and to the disadvantage of their members and customers.

Secondly, the Swiss CMOs are cooperative societies under private law, resp. in the case of Swissperform, an association under private law. They belong to their members. It is the members who decide and vote at general / delegates’ assemblies – the respective highest organisational bodies – how the societies carry out their work correctly and adequately. As the cost analysis has shown, members are well placed at exercising their autonomy. The plans of the Federal Council represent a case of members, i.e. Swiss creatives, being patronised and a gross disregard of their autonomy.

The working group on copyright (AGUR12) – and this is the third reason – has already concluded that a stricter supervision over the CMOs is not necessary. In said working group, consumer, producer and user associations took part alongside representatives of creators and artists. The proposals of the Federal Council on the copyright revision are largely based on the final report of this working group. The Federal Council has, nevertheless, ignored the recommendations of the AGUR12 concerning the issue of supervision and decided that a stricter control is required. Particularly with a view on the results of the study, this decision is not just very hard to comprehend but quite simply wrong.

So what are the next steps for the copyright law revision?
The CMOs and other parties have time until the end of March to take a stand in relation to the proposals of the Federal Council. This does not just affect the plans for a stricter control but also other suggestions e.g. how to combat internet piracy or with regards to remuneration models for private copying. We are going to give our view within said deadline and inform you about this in due course.

What’s really important for SUISA and the other CMOs is that after the presentation of this study, a sense of calm returns to the discussion on the control and supervision of CMOs. AGUR12 had already explained in its recommendations that a control of the CMOs which exceeded today’s statutory regulations, was not necessary. The discussion for the impending copyright law revision now needs to be de-emotionalised in our opinion. The focus for the next months must be re-directed to solutions which guarantee a fair remuneration for authors when it comes to the usage of their works, especially in the digital distribution sector.

“IPI study confirms cost-consciousness of Swiss collecting societies” (Press release)

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  1. Luka Pitschen says:

    Hier ist Lukas Pitschen
    sehr geehrte Muskschaffende
    Ein Inländer Vorrang ist das A und O
    Cover Freaks sollen verboten werden
    Wenn der Staat fungiert wird alles verfälscht
    Wir brauchen Arbeitgeber sodass CH Kompo
    nisten überhaupt existieren können…
    Musik komponieren und produzieren ist eine
    Wissenschaft und verdient höchsten Respekt
    Neider sind Gift und sind zu ignorieren.
    Es lebe das 12 Ton System !!
    Den Komponisten wünsche ich genug Umsicht und genug Zeit für unsere Sicherheit.
    Liebe Grüsse aus der Ostschweiz von
    Lukas Pitschen ( Musik Eigenproduzent )

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Last year, SUISA and the other Swiss collective management organisations (CMOs) have invested time and money into a cost analysis which had been requested by the federal government. The results of the study are now available. At hardly anyone’s surprise, study reveals that the Swiss CMOs work efficiently and have their costs under control. Nevertheless, the Federal Council demands a stronger control of the collective management organisations in its proposal for the copyright law revision. This is not just unnecessary, but actually absurd, as a closer look at the study results reveals. Text by Andreas Wegelin, CEO

SUISA is working cost-consciously

A study of the IPI confirmed that SUISA and the other Swiss collective management organisations have their costs under control (Photo: Giorgio Tebaldi)

What is the study about?
The supervisory authority of the Swiss CMOs, the Swiss...read more

Cost analysis for collective management organisations

A cost analysis has been carried out among the collective management organisations on behalf of the IPI. The figures reflect how diverse and different the business of issuing licences and distributing royalties to rights holders actually is. At SUISA, cost awareness is already established due to the cooperative members exercising self-control and the right to participate in the decision making process; additional supervision by third parties is therefore not necessary. Text by Andreas Wegelin

Cost analysis for collective management organisations

The results from the cost analysis will help to save further costs where necessary. SUISA’s cost control is, just like at any other private association mainly the duty of its members. (Photo: Lenetsnikolai / Fotolia.com)

Since early summer this year, financial experts have been busy with an analysis of the five collective management organisations’ costs: SUISA, Suissimage, Swissperform, ProLitteris and SSA. Under the guidance of experts from the Fernfachhochschule Schweiz (distance learning technical college), the ZHAW (University of Applied Sciences in Zurich) and the consultancy firm SERVUS, they are tasked with presenting a report to our supervisory authority, the Swiss Federal Institute of Intellectual Property (IPI) before the end of this year. The report focusses on the use of the collected remuneration which are intended to be first and foremost paid to authors and publishers, performing artists and producers.

The purpose of this exercise is to provide a more thorough insight into the cost arising for our activities as a collective management organisation. Together with the cost analysis, a report on how useful these expenses are, where there might be areas with saving potential and why certain areas cost significantly more than others.

Diverse and different licensing business

SUISA welcomes this cost analysis, especially the comparison with the other four Swiss collective management organisations and CMOs abroad. Furthermore, while collating the numbers, it has become obvious to us how diverse and different the business of issuing licences and distributing royalties to rightsholders actually is.

SUISA, for example, has about 30 different tariffs as it holds rights on the music in nearly all usage areas. The collected monies are – where possible – distributed on a work basis, i.e. per performed work, to many domestic and foreign authors and publishers.

In comparison to this, the activities of Suissimage are mainly based on the five tariffs related to cable (re)transmission, internal use at schools / for educational purposes or time-shift TV. The umbrella organisations for communication networks supports our sister society for authors’ rights on audiovisual works with its collection activities. The outsourcing of parts of the tariff process and collection activities to such associations reduces the entire effort in some cases, and the administration costs of the collective management organisation acting as the collection centre.

Inflexible rules governing administration costs make no sense

It is therefore clear that the costs Suissimage incurs in terms of collecting for these tariffs are disproportionately lower than the expenses SUISA incurs when issuing licences to approx. 50 importers based on 4 different sub-tariffs for blank media levies. It is thus quite clear that collecting levies for photocopying from all companies in Switzerland requires even more effort for ProLitteris.

Those differences continue when it comes to distributing the collected money. The costs are higher if – as is the case at SUISA – all distributions are split down to work-level and if payouts are not just made to own members but also worldwide to about 100 sister societies.

The cost analysis is going to show such differences and therefore also provide good reasons, just like the AGUR12, the copyright review working group, had already determined: It doesn’t make any sense to impose inflexible rules relating to the levels of their administration costs. The societies just differ too much from one another in their activities.

Cost control is a matter of the cooperative members

SUISA’s cost control is, just like at any other private association mainly the duty of its members. The General Assembly elects a Board among the members which directs the business and is responsible for adhering to the budget and the accounts. Members also run the financial matters of their cooperative by approving the annual accounts. They decide, for example, whether SUISA should offer its members gratuitous legal advice or whether they wish to finance pension scheme or a cultural foundation.

There are signs that political forces intend to change this. They wish to introduce an increased supervision over the collective management organisations. There is no need for that: The cost analysis is going to show that, in most cases, the organisations are handling the authors’ and publishers’ money carefully.

Regrettably, there has been one unfortunate single case where executives of a collective management organisation had been paid high amounts for their own pension with the approval of the relevant committees of that CMO. Such an individual case does, however, not justify to intensify the supervision to such a degree that the autonomy of our cooperative society, in other words, the ability of each individual member to contribute to the decision on the business and fate of SUISA, should be restricted.

Fair payment for the use of music

It seems that some politicians have little idea that the usage of music actually incurs a cost. They consider licence fees raised by SUISA to be a pain and forget that these fees are the basis for a fair payment to thousands of creators, musicians and lyricists, in Switzerland, too.

In order to be able to defend themselves against such a self-service mentality, authors have created their collective management organisations in the form of cooperative societies. Through these cooperative societies they are willing to provide the necessary means for their rights to be managed effectively. This is really not the place for a political intervention.

The results from the cost analysis will help to save further costs where necessary. In that sense, it is a welcome instrument for analysis for business activities. The plan that all costs incurred by collective management organisations should be controlled by the supervisory body, however, has to be clearly rejected. Members wish to and can control their own private cooperative society. They are the first to be interested in a well-functioning and cost effective society. After all, everything that would be expended senselessly would be lost to their own personal income. SUISA members neither want to lose the remuneration they are due nor their personal right to decide on their own, private collective management organisation.

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A cost analysis has been carried out among the collective management organisations on behalf of the IPI. The figures reflect how diverse and different the business of issuing licences and distributing royalties to rights holders actually is. At SUISA, cost awareness is already established due to the cooperative members exercising self-control and the right to participate in the decision making process; additional supervision by third parties is therefore not necessary. Text by Andreas Wegelin

Cost analysis for collective management organisations

The results from the cost analysis will help to save further costs where necessary. SUISA’s cost control is, just like at any other private association mainly the duty of its members. (Photo: Lenetsnikolai / Fotolia.com)

Since early summer this year, financial experts have been busy with an analysis of the five collective management organisations’ costs: SUISA, Suissimage, Swissperform, ProLitteris...read more

Das Urheberrecht: ein Hindernis für die Informationsgesellschaft?

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Third party content on your own website must be paid for pursuant to Swiss legislation

If you operate a website, you cannot dispose of the copyright of third party contents without authorisation. If you use third party contents on your own website, you require an authorisation from the author pursuant to Swiss legislation in effect, irrespective of the type of the technical integration. SUISA issues licences for the online exploitation of music, including music in videos, and negotiates these case by case. Text by Manu Leuenberger

Third party content on your own website must be paid for pursuant to Swiss legislation

Pursuant to Swiss law, authors decide on the use of their works on the internet. (Photo: Manu Leuenberger)

Music, lyrics, films, photos or videos bring a website to life. Via the internet, anyone can usually access contents anywhere and at any time. The operator of a website makes content thus available for exploitation outside the domestic/personal sphere.

According to Swiss law in effect, authors have the sole right to decide on the usage of their works. This includes that only the author has the right to “make [his work] available in such a way that persons have access to it from places and at times of their choice”. This right is established in the URG (CopA), Article 10 (2) c.

Legally relevant: From where the content is accessible

From the point of view of Swiss copyright, the “making available” is actually authoritative. In other words: The deciding issue in Switzerland is from where “the door is opened” to the content. The door-opening is done via the website where works can be viewed, read or listened to. It’s the website that enables the access to the content. Plus it ideally benefits from the attractiveness of the media which can be perceived there.

This function of a door-opener applies specifically to websites which contain embedded content. ‘Embedding’ means that third party content can be embedded via hotlinking, inline linking or framing, resp. inline frames into your own offering. YouTube, for example, actively provides HTML code for embedding videos apart from the hyperlink for sharing the video on its platform.

Website operators require an authorisation for the exploitation of the work

Irrespective of a technical solution, an exploitation takes place via the making available of works on a website. This exploitation is subject to a duty to pay copyright remuneration pursuant to Swiss law. In other words: The authors need to provide their authorisation for the use of their works in the form of a licence and are due a remuneration for the usage.

The website operator must obtain the licence in the case of work usages on the internet, or more specifically: the owner of the domain via which the works are made available. What must be considered in this context is that SUISA only issues licences for the repertoire that has been assigned to it.

SUISA does not represent all potential entitled parties

Especially in the case of multimedia content, many entitled parties may be involved, in particular: Producers (of film and sound recordings), photographers, lyricists, some publishers as well as scriptwriters, actors, artists, broadcasters and possibly others.

Some of these rightsholders represent themselves, for example the big film and sound recording producers, others such as composers have assigned a collective management organisation with the administration of their rights. There is an overview at www.swisscopyright.ch about which collective management organisation represents which type of rightsholders. SUISA is only responsible for the rights management of music. This also applies to music included in online videos.

SUISA’s focus is currently not on private websites and blogs

SUISA continues to negotiate the licence and the remuneration level for the usage of music on websites just as before. Its focus is on clearly commercial offers. Private websites and blogs without any commercial intent and without advertising revenue (e.g. from Google Ads) are not in SUISA’s focus. Regarding the latter, the proportion between the effort and the income is currently not reasonable. In other words: As long as collecting licence fees costs more than the amount thus secured, licensing does not make any sense.

Simple and efficient solution for Social Media remuneration suggested

Not only in this context but especially with regards to an efficient management it would be welcome if the work exchange on the internet in social networks could be remunerated via the collective management systems. This subject was discussed by the working group initiated by Federal Councillor Simonetta Sommaruga concerning copyright, “AGUR12”.

The working group suggested to the Federal Councillor that the options for the creation of a simple blanket remuneration solution for work usages in social media should be examined. With such a solution, a blanket licence for the usage of music, photos, videos etc. on social media would only be issued by one single collective management organisation. Swiss users would, in return, have the authorisation to share protected content by third parties via social networks.

Based on the well-established system of collective management organisations a cost-efficient distribution of the remuneration would be guaranteed. This way, authors whose music, lyrics, films, photos or videos make the internet so attractive, will receive the remuneration they’re due pursuant to Swiss legislation in effect for the online use of their works.

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If you operate a website, you cannot dispose of the copyright of third party contents without authorisation. If you use third party contents on your own website, you require an authorisation from the author pursuant to Swiss legislation in effect, irrespective of the type of the technical integration. SUISA issues licences for the online exploitation of music, including music in videos, and negotiates these case by case. Text by Manu Leuenberger

Third party content on your own website must be paid for pursuant to Swiss legislation

Pursuant to Swiss law, authors decide on the use of their works on the internet. (Photo: Manu Leuenberger)

Music, lyrics, films, photos or videos bring a website to life. Via the internet, anyone can usually access contents anywhere and at any time. The operator of a website makes content thus available for exploitation outside the domestic/personal sphere.

According to Swiss law in effect,...read more