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A penny for a snap

Posted by on 17 January 2019

A potential reality coming to Switzerland may see every photo or snap protected by copyright; does this mean that there is now remuneration due for every picture on my website or social media site?

A penny for a snap-Mattig-BenzWhile the European Union's (EU) new Copyright Directive is much discussed, the current revision of the Swiss copyright law lacks the same spotlight. However, there are many equally relevant questions in the context of the potential change in Swiss legislation. During the Swiss parliament's winter session, the National Council was the first of the two Councils to discuss the revision of copyright law. Both in the media as well as in parliament the focus lay on the following issues:

  • the fight against illegal uploads;
  • restrictions on replay TV;
  • increase protection of journalistic works; and
  • an extension of protection for photographic works.

In particular, the increased protection for photographic works is likely to have unexpected consequences for Swiss companies and organisations. Until now, the threshold for copyright protection of photographs in Switzerland was high. A certain composition, a certain level originality, was required. The draft new copyright law lowers this threshold significantly.

Photos on websites or links on websites to photos from social media channels can be photos by professional photographers but also snaps taken by members or employees. In the context of the current revision of the Swiss copyright law, the question arises as to whether all these photographs will be protected and whether their use may, therefore, have to be remunerated.

This is particularly interesting in view of the fact that for some time now there have been companies such as Copytrack searching the Internet for the unauthorised use of photographic works and immediately issuing invoices for the use of such photographs. Until now, not every photographic work in Switzerland was automatically protected, which is why not every demand for payment was justified. The scope to object to such demands was relatively large.

However, the new Article 2 paragraph 3bis of the revised Federal Copyright Act stipulates that the reproduction of photographs and objects which have been produced in a process similar to that of photography are now considered works within the meaning of copyright law, even if they do not have an individual character. In December, this change in the copyright legislation did not meet with any opposition in Parliament.

The scope of such protection will one day have to be decided by a court. According to the wording of the draft, the concept of work extends to any recording, regardless of whether it was made by an amateur or a professional. Among other things, this would cover every snapshot which was taken with a mobile phone, every X-ray image or computer tomographic image. The only limitation resulting from the law is for photocopies and the like. This enormously broad definition can result in serious consequences for companies and organisations that link photos on their homepages without certain controls.

For now the consequences remain unclear. Nevertheless, it is likely that this will lead to further questions and additional administrative work for companies. Certainly, more caution will be required when using photographs. Even when the new provision comes into force, it is important to keep calm when receiving a claim for remuneration. In the event of an unjustified claim, the corresponding payment demand is also unjustified. Hence, remember to always examine the legal situation before you lose a penny for the snap.

We will keep you posted about the ongoing debate in parliament and the consequent changes in Swiss and EU copyright law which may become relevant to you and your company.


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Photocredit: Unsplash / Malcol Lightbody

Topics: Intellectual Property

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Nicola Benz

Nicola Benz’s practice is focused on technology and life sciences transactions. She assists technology companies of all sizes, from start-ups to established players, as well as investors, suppliers and customers across a broad range of industries and sectors. Nicola Benz’s expertise covers outsourcing, licensing, joint ventures and collaborations and associated intellectual property issues. She also has considerable experience advising on all types of commercial contracts, competition and regulatory issues and data protection. Nicola Benz is recognised as a globally leading patent and technology licensing lawyer, as well as a leading practitioner in the field of intellectual property. Chambers Europe (2018) ranked her as leader in the fields of Intellectual Property and Life Science, and she was recommended in the 2018 edition of the Legal 500 EMEA for Intellectual Property as well as TMT matters. She has also been named as a thought leader for data law in the publication "Who's Who Legal 2018". Born in Scotland, Nicola obtained her law degree from the University of Edinburgh (LLB Hons) in 1997. She joined our firm as an associate in 2002 and became a partner in 2010. Since 2017 she has been the managing partner of our firm. Her working languages are English and German. Nicola is a member of the Zurich Bar Association, the International Trademark Association (INTA), the Licensing Executives Society (LES) and the International Technology Law Association (iTechLaw).

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Cornelia Mattig

Cornelia Mattig specialises in data protection and intellectual property law, as well as corporate and commercial law issues. Cornelia Mattig joined Froriep as an associate in 2018. Before joining Froriep, Cornelia Mattig trained with firms in Ireland, Germany and Switzerland as well as at the District Court of March in the Canton of Schwyz. After she passed the Bar exam in the Canton of Schwyz, she worked as a notary public and lawyer in an accounting and auditing firm. She graduated from the University of Zurich with a Master of Law (Business Law) in 2014 before obtaining her LL.M. in European Law at Queen Mary University of London in 2017. She was admitted to the Bar in 2018. She also holds a Data Protection Officer Certificate from the University of Maastricht. Her working languages are German and English.

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