The principle of participation combines freedom of use with reliable royalties. It can be implemented through individual licenses, collective agreements or, exceptionally, statutory rights to compensation. The principle of participation is not always sufficient, because consent in individual cases remains an equally important principle. As a minimum requirement, «royalty» is the right demand.
The Gössi motion on protecting intellectual property from AI misuse and the Aeschi and Nantermod initiatives on copying levies raise a common question: How do creative people and other rights holders participate in uses of their protected works and performances?
The starting point is actual use. Where no protected works or performances are used, there is no copyright-related right to compensation. If such content is used, its costs must form part of the business model, like other expenses. Those who create value with works bear not only the costs of servers, electricity and software, but also those of the creative substance used. This applies equally to their own operational processes and to offerings to third parties.
The principle of participation can be implemented in three ways. Individually, where rights holders can license their uses themselves. Collectively, where collecting societies with a corresponding mandate pool rights, enable licenses and preserve the decision-making options of the entitled persons. Exceptionally by law, where large-scale use is to be enabled without individual agreements and a statutory right to compensation ensures participation. The choice of instrument must suit the type and volume of uses.
In artificial intelligence, texts, images, music and other content are used for the training of models and for retrieval applications. In chat and other AI services, further copyright-relevant incorporations and reproductions may be added. In internal copying, companies, schools, public authorities and other organizations benefit from the statutory possibility of reproducing protected works for their activities and making them internally accessible. The uses differ, but in all cases the costs of the prior creative work form part of the economic assessment.
An ecosystem with licenses is fairer and more valuable than a self-service store without a cash register. Therefore, a statutory exception that leads to freedom from royalties requires particularly sound justification. The test question is: Are the rights holders and/or the collecting societies unable to claim an individual or at least a flat-rate royalty?
Collecting societies can enable large-scale uses at fair and moderate royalties. They create legal certainty for users and ensure the participation of the entitled persons. The tariffs are based on data and studies, negotiated with user associations and reviewed by the Federal Arbitration Commission for appropriateness. This creates a practical link between the creation of works and value creation. The existing copying levies show that this system works for companies, schools and public authorities.
Lawful quotations and parodies, certain technically necessary copying processes or uses within the personal circle are examples of freedoms regulated by law. Their exact scope of application follows the Copyright Act. For new technically enabled large-scale uses, the law and management should instead rely as far as possible on clear rights and appropriate royalties. Additional exceptions for AI training or other AI applications would underestimate the economic significance of artificial intelligence, undermine an ecosystem with licenses and weaken the interests of the entitled persons.
This also applies to research and to legitimate needs for use in education. The institutions concerned may use protected works within a defined research purpose without individual consent and without a right to object. Here, too, the following must apply: freedom of use yes, freedom from royalties no. Otherwise, not only gaps in royalties arise, but also cumbersome questions of delineation and unequal treatment, particularly when products emerge at some point after the research – which is often the case with technologies.
The discussion on the AI revision and copying levies gains clarity when it begins with the principle of participation. Uses of protected works should remain possible, and rights holders should participate through the appropriate instruments for this purpose. The legislature can define the rights and exceptions; collecting societies can efficiently organize licenses and royalties for large volumes of uses.
Increasingly, collecting societies also have technical foundations for future rights management, such as the International Standard Content Code (ISCC) for identifying content, Content Credentials according to the standard of the Coalition for Content Provenance and Authenticity (C2PA), and ProLitteris’ initiative for a Swiss Copyright Office.
Let us uphold the principle of participation in copyright law. It combines freedom and royalty, use and responsibility, the creation of works and value creation.