Talk:Swiss copyright law

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An entry from Swiss copyright law appeared on Wikipedia's Main Page in the Did you know? column on 31 March 2006.

This article should be at Copyright law of Switzerland, as it discusses things that go beyond the issue of photographs. The Marley/Meili decisions did not "define" copyright for photographs. The definition is in the law. These two decisions of the Supreme Court just defined binding interpretations. Lupo 08:12, 29 March 2006 (UTC)

[edit] The Meili image

Another point worth mentioning is that while the Meili decision makes that image (and I agree, likely also many other "low-creativity" images such as generic shots taken at press conferences, showing a speaker behind a microphone) inleigible for copyright in Switzerland, such images may well be copyrighted outside of Switzerland.

Or can someone point help me back up the statement "a work ineligible for copyright in its country of origin cannot be copyrighted in some other country"? (Assume all involved countries are members of the Berne Convention.) The Berne Convention works by national treatment, and that seems to extend even to the question whether a work is copyrightable at all. Had Gisela Blau sued in the UK or in Germany, the UK or German court would have had to apply UK or German law. It is quite possible that the image would be considered to have the necessary Schöpfungshöhe (threshold of originality) in other countries. (Insofar I have probably made a mistake by uploading the Meili image to the commons. It could be used as "fair use" in this article and also in the Christoph Meili article; but it's probably not free enough for the commons.) Lupo 08:12, 29 March 2006 (UTC)

I agree, we can move the article to Copyright law of Switzerland and expand it from there using e.g. de:Urheberrecht der Schweiz.

It may well be that images like the Meili photo are copyrightable outside of Switzerland (this is not, however, a matter of Swiss law and thus outside the scope of the article). I can't immediately answer the question with regard to the Berne Convention, as copyright law isn't really inside my professional experience in Swiss law (but I'll do some research if I have the time during the next days).

I don't think, though, that you were in error to upload the Meili image to the Commons. Precisely because of questions like the one you raised, Commons:Licensing states:

The copyright of the nation where the image was first published gets applied to that image (and this country-specific law decides if we consider the image as public domain in general or not).

... and thus the phrasing of the {{PD-Switzerland-photo}} template. Best regards, Sandstein 16:44, 29 March 2006 (UTC)

Maybe they say that on the commons, but it is not a correct characterization of the "public domain", not even from a U.S.-centric point of view. See WP:PD. And that statement on the commons (their "golden rule") is controversial even over there. I am completely sure that it is wrong for the meaning of "public domain = copyright expired". I am not sure about the meaning "public domain = ineligible for copyright", but I suspect strongly that it is also wrong for those works. If you could help figure this out (either way), that'd be great.

I wasn't implying that this question had anything to do with this article. But it certainly has a lot to do with whether Wikipedia can consider the work PD or not. Swiss law is pretty much irrelevant for hosting images on Wikimedia servers. Lupo 18:31, 29 March 2006 (UTC)

Well, this "golden rule" is presently policy, and so should be followed, but I agree that it would be useful to check if it is legally sound and if not, to propose to change it.

Also, I don't quite get the distinction between "expired" and "ineligible" you are trying to make. WP:PD correctly states that "The public domain is generally defined (...) as the sum of works that are not copyrighted, i.e. that were not eligible for copyright in the first place, or whose copyright has expired." I am not aware of any jurisdiction in which this is not so. As far as I am concerned, both categories are completely equally public domain. Thus, the legal question is simply, if something is public domain according to the law of country A, can one make a general statement about the copyright protection of this object in the countries X,Y,Z...N?

Maybe the answer is "Yes, and this statement is the 'golden rule'". Even if the answer is "no", the "golden rule" is probably a workable compromise (at least until litigation ensues...). And if the "golden rule" still applies, then of course Swiss law remains relevant for determining the suitability of uploading Swiss images on Wikimedia servers. Sandstein 19:27, 29 March 2006 (UTC)

I should have explained it better. The intent of the Berne Convention, as far as I understand it, was to ensure that works that were copyrighted in their country of origin were also copyrighted in all other signatory states. To that end, the Berne Convention defined to work by national treatment: e.g., a (Nation A) work would be protected in another (Nation B) under nation B's law, not nation A's law. Hence, if something is copyrighted in nation A, it also is copyrighted in nation B, with nation B's terms of copyright. It is therefore possible that the copyright on the work in nation A (the country of origin) has expired, but not yet in nation B (and vice versa). Therefore, the golden rule is wrong. If copyright on a work in its country of origin has expired, that doesn't mean that it were in the public domain anywhere else. That was my case "PD = copyright expired".

Now about my second case "PD = ineligible for copyright". What about a work that cannot be copyrighted in nation A? What if such a work was eligible to copyright in nation B? Can it be copyrighted in nation B?

Following the national treatment defined in the Berne Convention (which just defines the classes of works, but doesn't say what conditions something has to fulfil to be a "work"), the answer seems to be "yes": if the work is eligible to copyright in nation B, it can be copyrighted there, although it is ineligible in its country of origin! I have searched far and wide, and not found any statement that would back up the far more intuitive assumption that the answer was "no". But if I've learned one thing from trying to understand the aspects of international copyright issues then it's that things often are not intuitive.

The point for Wikipedia is: if the answer is "yes, works ineligible to copyright in their country of origin can still be copyrighted elsewhere", the Meili photograph would almost certainly be copyrighted in the EU (at the utmost, it might be a simple Lichtbild in Germany, with a protection of 50 years since publication), and I'm fairly sure it would also be protected in the U.S. Hence we couldn't use it under a PD pretext here but would have to use it under "fair use".

I hope I have now explained my problem better. In any case, if you could find a court case or legal comment backing up either the "yes" or "no", that'd be great. Lupo 20:20, 29 March 2006 (UTC)

OK, I think I see the issue now. I'll try to look into it too, but that might take some time. Sandstein 20:26, 29 March 2006 (UTC)

Someone has tagged the image on the commons as a copyvio... I have re-uploaded it onto the English Wikipedia and made "fair use" claims for both articles. Lupo 19:45, 2 April 2006 (UTC)

In fact, see Berne Convention, §5(2): ...such enjoyment and such exercise [of copyrights, Lupo] shall be independent of the existence of protection in the country of origin of the work. Thus the image may indeed be copyrighted outside of Switzerland. Remains the question why the photographer didn't go to court in the UK where the alleged infringement had occurred. Lupo 09:32, 6 April 2006 (UTC)

[edit] Move to Copyright law of Switzerland

I was going to start an article about the Copyright law of Switzerland, so I was glad to see that this article was recently created, and that it was proposed to move the article to Copyright law of Switzerland. If noone does it in the next future, I will do it and start adding more general information. Schutz

• Good idea; I have no problem with that. Sandstein 20:30, 2 April 2006 (UTC)

• So be it — done ! Schutz 20:36, 2 April 2006 (UTC)

[edit] Is Image:Comint-switzerland.jpg PD in Switzerland ?

Do you think that the image Image:Comint-switzerland.jpg is PD in Switzerland ? I would think so, since it clearly represents a report from the Swiss Administration *as per art. 5.3 URG/LDA), but would like to hear other opinions. Obviously, whatever the answer, it could still be illegal to publish it in Switzerland, because of the law on military secret (but it is unlikely in this case, since it has been published by others and is not a secret anymore). Schutz 00:23, 15 April 2006 (UTC)

I briefly checked on Swisslex and on bger.ch - surprisingly enough, there appears to be nothing in the way of pertinent jurisprudence or scholarschip on what constitutes a official report under art. 5 par. 1 litt. c URG.

What we do have is the opinion of the administration, in the message to Parliament (BBl 1989 III 477, p. 524 et seq.) (German, 12 MB PDF). It says, roughly translated, that "Works by public authorities are in principle exempt from copyright protection, because the interest in unhindered propagation outweighs the creator's interest in protection." However, "the article still provides for copyright protection for numerous works created in the course of official activity. Documents of intragovernmental commissions or work groups, expert reports or internal newsletters are not subject to it. There is no prevailing interest in their propagation, as they do not affect the citizen's legal position."

Based on this, I don't think a compelling case can be made this classified document is PD, as it does not constitute a "report" in the sense outlined above, i.e. addressed to Parliament or the public - indeed it obviously was never meant to be made public and the ratio legis appears to exclude internal documents the citizen was never supposed to see. Sandstein 04:55, 15 April 2006 (UTC)

Seems fair, so I'll leave it until fair use for now. We are getting to the boundary of my knowledge of laws, but I will risk one more comment... The citizen was never supposed to see the document only because of it was a military secret: once the cat is out of the bag, it may be arguable that the interest in propagating the document for discussion (e.g. by citizens discussing about the tasks of the Swiss army, especially on a topic that is usually entirely undocumented) ouweights the creator's interest in protection (which is low in this case, once the document has been released): just looking at the attention of the press about this document indicates that there is a special interest from the citizen's point of view. It is probably interesting to note that the Governement sued the Sonntagsblick for violation of military secrets, but did not mention a violation of copyright (and, as far as I know, has never done it for leaked documents). Schutz 13:30, 15 April 2006 (UTC)

This is a valid line of argumentation, but it is not so clear-cut that I would recommend pursuing it to a client. For the government, I would argue that the legislator intended to not protect a certain class of documents which by their nature are meant to become public; he did not mean to not protect other documents which are not meant to become public but may be interesting to the public for some other reason. There are probably many internal government documents that would be interesting to (some) citizens...

At any rate, the reason "Blick" was not prosecuted for copyright violation was probably that the reproduction was within the scope of the right to report on current events provided by Art. 28 URG. This might also be used by Wikipedia in this context, IMHO (but note that I am only addressing the copyrights angle, not the military secrets angle).

Thanks for these insights. Schutz 23:22, 15 April 2006 (UTC)