Swisscopyright brings together the stakeholders involved in the collective management of intellectual property rights under the Copyright Act (URG). Under the leadership of ProLitteris, Swisscopyright has analysed the consultation draft of 24 May 2023 (Federal Act on Copyright and Related Rights – Neighbouring Rights for Journalistic Publications).
The preliminary draft provides a sound basis and sets out realistic objectives. The key parameters for royalties must be defined in a tariff-setting procedure once the Act comes into force. The amount of royalties depends on these forthcoming negotiations and on data; it cannot be predicted at present.
The amendment to the Copyright Act provides for compensation for value creation on the internet. When launching the consultation, the Federal Council noted that internet services benefit greatly from the services provided by the 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 EU Member States rights vis-à-vis internet services. Most EU Member States are currently implementing this directive.
Swisscopyright welcomes the fact that the right to pay royalties in Switzerland is entrusted to collective management organisations, and that mandatory collective management is used for this purpose. Mandatory collective management offers legal certainty and has proven its worth in practice. Under this model, royalties are paid, for example, for the retransmission of radio and TV programmes, the import of storage media and copying in schools. The tariff-setting procedure is regulated by law. It provides for official approval of tariffs (Federal Arbitration Commission, ESchK) and supervisory oversight of management (Swiss Federal Institute of Intellectual Property, IPI). The collective management organisations regularly negotiate with the associations representing the users concerned – in this case, for example, search engine operators. The collective management organisation most directly affected is designated as the managing collective management organisation. In this instance, this is ProLitteris, which represents the rights holders primarily affected by the remuneration claim: media companies and media professionals.
The collective management organisations focused primarily on analysing the implementation of the remuneration claim. The preliminary draft should be amended as follows:
Section 37a(1)(a) of the Copyright Act (URG): If, in addition to making content 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 precedes this, e.g. as input during training or in the search engine’s presentation. Otherwise, the collective management organisations are of the view that the draft should not be extended to cover AI systems.
Section 37a(3) of the Copyright Act (URG): Publishing houses’ entitlement should also be declared non-waivable (“The entitlement to royalties is non-waivable and may only …”), just as is the case with authors’ entitlement to a share of the proceeds. Furthermore, the collective management organisations assume that the right to a share under Article 37c of the URG applies to all affected rights holders who have contributed to journalistic publications, including, for example, authors of pre-existing works and holders of related rights.
Swisscopyright recommends against including a special provision covering user-generated content, such as that found on social media. Whilst social media platforms and their users regularly make third-party content accessible, a special provision for this is not necessary in this amendment to the law.
The collective management organisations’ response to the consultation will be available on the website https://www.swisscopyright.ch from 15 August 2023. The consultation runs until 15 September 2023.
You can find the press release here.