Under Swiss copyright law, a medium may use images of artworks without the consent of the rights holders only if a statutory limitation provision allows this. Such a limitation exists for reporting on current events. The purpose of the statutory exception is current media reporting that is intended to function without contractual licenses. The public interest in media reporting, which is granted a privilege by law – one thinks of media freedom in the Federal Constitution, Article 17 FC – takes precedence over copyright in this context. Persons other than media or media professionals are not granted a privilege. The organizer and third parties who are not active in journalism cannot invoke the freedom of reporting – however, thanks to a practice of ProLitteris, they can specifically supply media professionals.
1. The freedom of reporting requires, first, a current event, for example an exhibition, an art presentation, an art auction, or an art theft. The current event may come from any area of life such as politics, business, culture, or sport, and it must be of interest to the public. Events such as an anniversary, a public holiday, or a self-selected topic are not covered by the freedom of reporting. The hundredth anniversary of an artist’s death is not a current event. Events such as a memorial ceremony, exhibition, or official tribute, on the other hand, are a current event.
2. The second condition is that the used work is perceptible at this event. If artwork X can be seen in the background of an interview at a vernissage, this does not at the same time make artwork Y license-free. With the freedom of reporting, the law intends to grant a privilege only to depictions of works that are perceived on the occasion of the on-site visit. The informational purpose must be in the foreground, the depiction in the background. As usual, reproductions for the design of a journalistic newspaper or magazine require a contractual license.
3. The third requirement is that the used work is perceived by media professionals and recorded or depicted by them. This concerns the situation in which one reports on a current event and in doing so also captures protected works that can be seen at the event. Under this rule, media professionals would not have freedom of reporting as long as they do not leave their editorial offices.
ProLitteris supports an alternative and allows press material from museums and other organizers to be used, for example photos of exhibits. Making such press material available and distributing it requires an authorization, either because the organizer holds the rights or in the form of a license. If the other conditions for reporting on a current event are met, the collective management organization allows in its license to museums that they may make image material of exhibited objects available to media professionals. A public website may not be used for this purpose; instead, there must be a closed area or a dispatch of the files by email or post exclusively to media professionals. The museums accompany this offer with the notice that licenses must be obtained for uses outside the statutory freedom of reporting, usually from ProLitteris in the case of artworks. ProLitteris often grants such a license to the media as well, and the repertoire of the collective management organization includes many artists, including internationally renowned ones (Art distribution).
4. Fourth, the reporting must prominently mention the current event. Title or subtitle, lead, and caption. The type of text that is exempted by law is a report, not a feature or background article that selects specific exhibited works for illustration. A copyright notice regarding the depiction rights (e.g. © artist, © ProLitteris or © museum, wherever the rights lie) is also appropriate in the case of the freedom of reporting, similar to the related case of the freedom of quotation.
5. The final requirement is an own contribution in the form of genuine reporting. For practical purposes, ProLitteris follows the rule that the report as a text area must be at least as large as the depiction or representation of the used works. This condition also makes it possible to distinguish image galleries with small-format captions, for which there is no privilege and a license is required.
Compliance with these conditions lies within the responsibility of the media professionals and the media company. The background is the principles of copyright. For the use of works that is not covered by a statutory limitation, authorization from the rights holders is required. If these five conditions go beyond the needs of the media or the museum, ProLitteris can evaluate an extended collective license, also for a longer period and many works. In this way, the media work of a memory institution could be authorized in a sustainable and blanket manner and structured in a legally secure way. The same applies to a form of reporting in the editorial section of media that do not deal with an exhibition but still wish to report on it.