In addition to the anti-piracy measures and the reforms in connection with digitalisation, the draft act also contains further improvements which benefit the various parties involved.
The term of protection for related rights, for example the rights of singers, actors or producers of CDs, will be increased from the current 50 years to 70 years.
In so doing, creative artists will receive income for a longer period, for example from the sale of an album. In addition, it achieves harmonisation with EU law. In the EU, a term of protection of 70 years for music is already a reality. For the purpose of equal treatment, the term of protection will also be extended to audiovisual works meaning musicians and actors will be treated equally.
In cases where collective management is required by copyright law, the CMOs negotiate the tariffs for the use of copyrighted works and performances with the relevant user associations. The Federal Arbitration Commission for the Exploitation of Copyrights and Related Rights (FACO) subsequently verifies the tariffs for appropriateness. The decision of the FACO can be appealed before the Federal Administrative Court and under certain circumstances, the judgement can be brought before the Federal Supreme Court.
Nowadays, due to rapid technological developments, the tariffs of the CMOs usually apply for a maximum of two years. Often, a review procedure before the Federal Administrative Court is still pending at a time when the FACO must decide on the subsequent tariff. This is an unsatisfactory situation. Therefore, the appeal procedure before the Federal Administrative Court will be tightened with the following measures:
- An appeal against the decision of the FACO will 'de jure' have no suspensive effect, i.e. the tariff will be applied. In the future, the tariff will be applied regardless of the pending appeal. This means that protected works can be used in accordance with the conditions of this tariff. Gaps in remuneration and insovency risks are eliminated. There are no resulting disadvantages for the intermediaries because if the appeal is granted, there is a repeal and the overpaid amounts are repaid. Conversely, if a disputed tariff is confirmed, the intermediaries have already paid and are not confronted with substantial surcharges.
- In the procedure before the Federal Administrative Court, no supplementary submissions are allowed.
- The 30-day time limit for making submissions will no longer be extended.
- Generally, only one exchange of written submissions will be allowed between the parties.
Additionally, in the future, the FACO will be empowered to order the hearing of witnesses. By clarifying the facts before the FACO, avoidance can be made of new questions of fact only arising later before the Federal Administrative Court. The tariff approval as a whole will therefore be accelerated.
Along with the revision, two agreements of the World Intellectual Property Organization (WIPO) will also be ratified.
The Beijing Treaty
At international level, musicians today can currently make a case against the illegal use of their performances, yet actors cannot. The Beijing Treaty eliminates this inequality.
Swiss copyright law already protects music and acting performers equally. The ratification of the Beijing Treaty therefore requires no legislative change. It extends the protection of Swiss film actors to other member states. With the ratification, Switzerland is sending a clear signal that it stands for the equal rights of protection for musicians and actors at international level.
The Marrakesh Treaty
The Marrakesh Treaty improves access to works for the visually impaired by legally allowing the production and cross-border exchange of copies of works in a form accessible to them.
The rules contained in the Swiss Copyright Act for improved access to works for the visually impaired already fulfil most obligations of this treaty. However, certain amendments are necessary. Current law only allows the import of copies of works sold in the country of origin by either the authors themselves or upon their consent. Yet the import of copies of works produced in a contracting state in accordance with a legal restriction is not allowed. In order to make that possible in the future, the rule’s scope of application will be extended accordingly.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"