Using the opportunities offered by digitalisation

Digitalisation has opened up completely new opportunities for dealing with culture and knowledge. For example, films and programmes are no longer obtained from the video store, but instead in digital format via online platforms (video-on-demand) where they can be viewed directly via streaming or downloaded for viewing later. Therefore copyright law is to be adapted to technological developments with various reforms.


Improvements for creative artists are to be achieved by expanding protection for photographs and ensuring a more efficient management of video-on-demand rights.


Exceptions and limitations allow protected works to be used without any explicit authorisation from the rights owner. The new exceptions (use of orphan works, exception for scientific purposes, index privilege) facilitate the work of researchers as well as what are known as memory institutions such as libraries, and allow their collections to be more easily used.


Extended collective licences are intended for situations where a desired use is not permitted by law and where the acquisition of a huge number of rights is not possible and would fail due to the efforts and high costs involved in acquiring rights from many individual right owners. The measures intended to foster the electronic rights management are to contribute to making collective management more efficient and less costly.


Broader protection for photographs


Facebook, Twitter, YouTube – on the internet these days, material is posted, tweeted and shared… and often photos are used without asking permission.


The currently applicable law only protects photos if they are individual and thus have the character of a work. This rule does not apply, for example, to product images, in that such photos may be used without the permission of the photographer. This situation is of concern to both professional and hobby photographers, which is why it will no longer be possible in the future. This means that under the revised law, all photos will be protected including, for example, press photos and product images, but also everyday family and holiday photos.


In the future, anyone wanting to use photos belonging to someone else will always require the permission of the photographer. This creates legal certainty. Currently, it is often unclear whether a photo is protected or not, i.e. whether its use on the internet, for example, is an infringement of copyright. In the end, it is consumers who benefit from this legal certainty because they could otherwise face an unexpected claim for damages.


Remuneration for video on demand


In recent years, the renting of films and series on video cassette and DVD has drastically reduced. Many consumers no longer obtain films and series from the video store, but instead in digital form from platforms on the internet (video on demand). Here films and series can be viewed directly via streaming or downloaded for viewing later.


Although the number of uses via online platforms is continually increasing, film authors and performers complain that it has not been possible until now to be compensated for the decline in income for rentals.


Authors nowadays already receive the remuneration to which they are entitled for online use directly from the operators of online platforms via collective rights management organisations (CMOs). Authors consider this system beneficial, which is why it is to be laid down in law. For reasons of equal treatment, both authors and performers, such as actors for example, will benefit from this new legal entitlement to remuneration.


Authors and performers will therefore continue to assign to producers the exclusive rights to their works necessary for exploitation. However, they will retain an indispensable entitlement to remuneration, which is asserted against the operators of online platforms by the CMOs. This corrects the imbalance in negotiation power between creative artists and the other parties.


Use of orphan works


Works are orphaned if their authors remain unidentified or are untraceable, despite research. Orphan works cannot or can only be used to a limited extent because the consent from its author or its successor of title cannot be obtained. The Centre Dürrenmatt Neuchâtel, for example, possesses not only various works by Dürrenmatt, but also photos which depict the famous author. As the identity of the photographer cannot be ascertained in some cases, these pictures may not be used in a biography of Dürrenmatt, for example.


Although Swiss copyright law contains a provision to allow the use of orphan works, it only covers works on phonograms and audiovisual fixations in publicly accessible archives (e.g. the archive for contemporary history at the ETH Zurich) and archives of broadcasting organisations. In the future, the revised law will allow the use of all orphaned works located in the collections of memory institutions (public or publicly accessible libraries, educational institutions, museums, collections and archives). In so doing, it will prevent culturally and historically interesting works from falling into oblivion due to lack of use.


Anyone who wants to use orphaned works must pay remuneration. This ensures that rights owners who were initially unidentified or untraceable but are later identified or reappear, receive remuneration for previous uses of their works.


When a rights owner is identified or reappears, the work no longer has orphan status. A use which has already been permitted by one of the competent CMOs remains legal and may continue until completion. For example, permission to print an edition of a book also extends to the distribution of this edition. Yet each further edition of the book requires the consent of the rights owner.


Exception for scientific purposes


Nowadays, large quantities of information, such as text and images, are also available electronically. Particularly in the field of research, analysis of this data is increasingly automated as this makes it easier to find patterns, similarities and differences. The research technology employed for this purpose, called text and data mining, automatically saves a copy of the information to be analysed on a separate server. This copy in particular could be perceived as being problematic in terms of copyright.


In order to use the new opportunities of digitalisation and strengthen Switzerland as a location for research, authors will no longer be able to prohibit the automatically created copies that are necessary for analysis. The appeal made for an exception for scientific purposes is based upon the assumption that the copies are primarily stored for the purpose of scientific research and are required for technological reasons. In addition, researchers need lawful access to the work. This means that they must acquire this work themselves or that it is available from a library.


Authors receive no additional remuneration for such use. As it does not concern the use of the work as such, but instead an automated use of the data that it contains, the author does not suffer from any financial loss.


Index privilege


Digitalisation provides completely new opportunities for dealing with culture and knowledge. Libraries, for example, would like to offer short excerpts from films or pieces of music which are in their collections to make searching easier and more attractive. This is nowadays almost impossible because such usage requires obtaining the permission of all rights owners.


To allow libraries, museums and archives to present the content of their collections in a contemporary format to the public, the revised law will allow online searches to show the cover page, index or abstract for academic works, in addition to the author, title and collection number. For this reason, memory institutions will receive permission to reproduce short excerpts of works in their inventory indexes, regardless of whether they are in digital or analogue format.


Extended collective licensing


If a museum wants to show a larger number of valuable photos on its website, it often requires a lot of time and effort or is even impossible to obtain all the copyright concerned, i.e. the rights for all photos.


The situation is similar when a provider of new uses or forms of use has to obtain a multitude of rights. For example, a museum would like to use excerpts from films that have already been screened for an exhibition film. The rights for this broadcast are in the hands of the broadcasters and the owners of the rights to the programme contents. In most cases, individual acquisition would require too much time and effort and would result in the failure of the project.


Extended collective licences will in future therefore remedy this situation by allowing CMOs to conclude agreements with intermediaries (e.g. museums) on the mass use of copyright protected works and performances. Intermediaries may use the works concerned immediately, and without requiring time and effort for legal clarifications. They also obtain legal certainty because their uses are legal and they do not have to fear financial or legal claims from rights owners. In return, rights owners receive remuneration. It is the general public who benefits from access to cultural property and from new forms of use.


Licensing on the basis of extended collective licences may not hinder the normal use of works and performances. This means that offers of commercial music or films via online platforms or via e-books may not be based on extended collective licences. Even in the future, licences must still be acquired for regular commercial offers.


If affected rights owners are not in agreement with the use of their works, they may refuse the issue of a licence (so-called opting-out).


Electronic notifications of use


Anyone who performs or plays works protected by copyright, such as concert organisers, radio stations or even cafés (if they play background music, for example) must provide the competent CMO with usage data. Such data includes, in particular, the names of composers, music labels and singers, as well as the playlists and duration of each piece of music. On this basis, the CMOs then distribute royalties to artists.


Intermediaries already have to deliver this information to the CMO under the current law. To do so, they usually use a form, which they return regularly. This paperwork costs time and money and increases the administrative costs of the CMOs. To reduce costs on both sides, the electronic administration of rights is to be fostered.


In the future, information will be provided in a manner that corresponds to the state of the art and allows the automatic processing of data. In addition, CMOs will have the right to exchange data that they have received with each other so that intermediaries only have to report the data once.