Under Swiss copyright law, a media outlet may only use images of works of art without the consent of the rights holders if a statutory exception permits this. Such an exception exists for reporting on current events. The purpose of this statutory exception is to enable timely media reporting to function without the need for contractual licences. The public interest in media reporting, which is privileged by law – one thinks of freedom of the press in the Federal Constitution, Article 17 FC – takes precedence over copyright in this context. Persons other than the media or media professionals are not afforded this privilege. The organiser themselves and third parties not engaged in journalism cannot invoke the freedom of reporting – though, thanks to a practice adopted by ProLitteris, they can specifically supply material to media professionals.
1. Firstly, freedom of reporting requires a current event, such as an exhibition, an art presentation, an art auction or an art theft. The current event may originate from any sphere of life, such as politics, business, culture or sport, and it must be of interest to the public. Events such as an anniversary, a public holiday or a self-chosen topic are not covered by the freedom of reporting. The hundredth anniversary of an artist’s death is not a current event. Events such as a memorial service, an exhibition or an official tribute, on the other hand, are current events.
2. Second condition: The work used must be visible in connection with this event. If a work of art X is visible in the background of an interview at an art exhibition opening, this does not automatically mean that work of art Y is licence-free. Through the freedom of reporting, the law intends only to grant special status to images of works that are visible during an on-site visit. The informational purpose must take precedence; the image must remain in the background. As is customary, a contractual licence is required for reproductions used in the layout of a newspaper or magazine.
3. The third condition is that the work used must have been observed and recorded or depicted by media professionals. This therefore refers to a situation where one is reporting on a current event and, in doing so, also captures protected works that are visible at the event. Under this rule, media professionals would have no freedom of reporting as long as they do not leave their editorial offices.
ProLitteris supports an alternative approach and permits the use of press material from museums and other organisers, e.g. photographs of exhibits. Making such press material available and distributing it requires authorisation, whether the organiser holds the rights or a licence has been granted. Provided the other conditions for reporting on a current event are met, the collective management organisation permits museums, under its licence, to make photographic material of exhibited objects available to media professionals. A public website may not be used for this purpose; instead, a restricted-access sector must be provided, or the files must be sent by email or post exclusively to media professionals. The museums accompany this offer with the note that licences must be obtained for uses falling outside the scope of the statutory freedom of reporting; for works of art, this is usually from ProLitteris. ProLitteris often grants such licences to the media as well, and the collective management organisation’s repertoire includes many artists, some of whom are internationally renowned (Art management area).
4. Fourthly, the report must prominently mention the current event – in the title or subtitle, the lead and the caption. The type of text exempted by law is a news report, not a feature or background article that selects specific exhibited works for illustrative purposes. A copyright notice regarding the rights to reproduce images (e.g. © artist, © ProLitteris or © museum, wherever the rights lie) is also advisable in the case of freedom of reporting, similar to the related case of freedom to quote.
5. The final requirement is an original contribution in the form of genuine reporting. For practical purposes, ProLitteris follows the rule that the text of the report must be at least as large as the image or representation of the works used. This condition also helps to distinguish photo spreads with small captions, for which no exemption applies and a licence is required.
Compliance with these conditions is the responsibility of media professionals and the media organisation. The basis for this lies in the principles of copyright law. For the use of works not covered by a statutory exception, permission from the rights holders is required. If these five conditions go beyond the needs of the media or a museum, ProLitteris may consider granting an extended collective licence, including for longer durations and covering a large number of works. In this way, the media work of a memory institution could be authorised on a sustainable and flat-rate basis and structured in a legally secure manner. The same applies to a form of reporting in the editorial section of media outlets that do not deal with an exhibition but nevertheless wish to report on it.