Swisscopyright brings together the stakeholders in the collective management of intellectual property rights under the Copyright Act (CopA). Under the leadership of ProLitteris, Swisscopyright has analyzed the consultation draft of 24 May 2023 (Federal Act on Copyright and Related Rights – related right for journalistic publications).
The preliminary draft provides a good basis and sets realistic objectives. The key parameters of the royalties must be defined in a tariff procedure after the law enters into force. The total amount of royalties depends on these upcoming negotiations and on data; it cannot be predicted today.
The amendment to the Copyright Act provides for a balancing of value creation on the internet. When opening the consultation, the Federal Council stated that internet services benefit to a large extent from the performances of journalistic media. The Federal Council’s preliminary draft is aligned with the international situation: in 2019, the European Union adopted a directive granting media companies in the EU Member States rights vis-à-vis internet services. Most EU countries are currently implementing this directive.
Swisscopyright welcomes the fact that the right to remuneration in Switzerland is entrusted to the collective management organizations and that mandatory collective management is used for this purpose. Mandatory collective management is legally reliable and has proven itself in practice. In this model, for example, the retransmission of radio and TV programs, the import of storage media and copying in schools are remunerated. The tariff procedure is regulated by law. It provides for official approval of tariffs (Federal Arbitration Commission for the Exploitation of Copyrights and Related Rights, FACO) and supervision of management activities (Swiss Federal Institute of Intellectual Property, IPI). The collective management organizations regularly negotiate with the associations of the users concerned – in this case, for example, the operators of search engines. The collective management organization that is most affected in each case is designated as the managing organization. In the present case, this is ProLitteris, which brings together the rights holders primarily affected by the right to remuneration: media companies and media professionals.
The collective management organizations have mainly analyzed the implementation of the right to remuneration. The preliminary draft should be optimized as follows:
Art. 37a para. 1 letter a CopA: If, in addition to making available, reproduction is also mentioned («…reproduce journalistic publications or make them available in such a way…»), search engines that present their search results as AI-generated content could also be covered, provided that reproduction takes place beforehand, for example as input in training or in the presentation of the search engine. Otherwise, the collective management organizations take the view that the draft should not be extended to AI systems.
Art. 37a para. 3 CopA: The claim of publishing houses should also be declared inalienable («The right to remuneration is inalienable and may only…»), just like the participation right of authors. Furthermore, the collective management organizations assume that the participation right under Art. 37c CopA is granted to all affected rights holders with contributions in journalistic publications, i.e. also, for example, authors of pre-existing works and holders of related rights.
Swisscopyright recommends refraining from a special provision to cover user-generated content, for example content on social media. Social media and their users do regularly make third-party content available, but a special provision for this is not necessary in this amendment to the law.
The statement of the collective management organizations on the consultation will be available from 15 August 2023 on the website https://www.swisscopyright.ch. The consultation runs until 15 September 2023.
Here you will find the media release.