Context :
The Federal Act on Copyright and Related Rights (Copyright Act, CopA) has undergone significant modifications, applicable since April 1st, 2020, offering stronger photographs copyright protection. Since that date, any photograph of three-dimensional objects is considered as works protected by copyright, even if it does not have individual character. This constitutes a considerable change in comparison to the previous version of the law, which required, in particular, that a photograph presented individual character in order to be protected by copyright.
Previous legal provisions
According to the previous applicable provisions of the Act, any photograph had to present individual character in order for its author to be able to claim a copyright under the law. According to the Swiss Supreme Court, a photograph’s individual character may depend on various criteria, including the technical means used by the photographer, the choice of subject, the framing, the moment of the shooting, the use of a specific lens, etc. But the result obtained is of a particular importance, the works must express an idea with individual character. More simply, the photograph cannot be ordinary and has to present a certain originality, in order to have individual character.
This abstract criterion was controversial and problematic for photographers, especially for press photographers. Indeed, their photographs documenting events were rarely considered has having individual character, therefore excluding them from copyright protection.
Photographs protection
Photographs now only have to fulfill two conditions to be considered as works under the Copyright Act and thus benefit from the copyright protection.
First of all, they must have been taken by a human, which excludes photographs taken automatically, for example by a radar. Secondly, they must represent a three-dimensional object. Therefore, photographs of plans and drawings do not fall within the scope of the Copyright Act.
Length of the protection
Photographs without individual character fulfilling the conditions of the Copyright Act are protected during fifty years after their creation.
Photographs with individual character are protected during seventy years after the passing of their author.
Works created before April 1st, 2020
The amended Copyright Act also applies to photographs taken before its entry into force, provided that such photographs have not fallen into the public domain. Therefore, a photograph without individual character can be protected, even if it has been taken before April 1st, 2020.
Nevertheless, if a photograph that would be protected by the amended Copyright Act has been used lawfully under the previous applicable version of the Act, it does not pose a problem. Therefore, a photograph without individual character lawfully used on a website before April 1st, 2020, can still be used without the consent of its author.
The GVA law team assists you with regard to these legislative modifications. Our attorneys are available for any enquiry.
Pierre Vuille, Attorney-at-law