A Penny for a Snap

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?

While 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.