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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