Legal Issues in Switzerland

Numerous legal questions arise in connection with open access policies and the operation of open access repositories and open access journals. On this page, you will find information on the legal frameworks in Switzerland that are of relevance in the context of open access. Please note that the content presented here is intended for information purposes only and does not constitute legal advice.

Copyright

The object of protection of the Swiss Copyright Act (CopA) are works in the sense of "intellectual creations" (Art. 2(1) CopA), irrespective of their embodiment in a copy of the work. In the case of an article, for example, it is not the article in a particular graphical layout that is protected, but rather the article “in and of itself”.

Intellectual creations enjoy protection under the Swiss Copyright Act only to the extent that they have "individual character" (Art. 2(1) CopA). In the case of scientific works, which are specifically mentioned in the act (Art. 2(2) points a and d CopA), the individual character is to be found not so much in the content of the work – for the content is strongly determined by material logic – but rather in the concrete linguistic or stylistic presentation, in the wording and organisation of the material. As a rule, scholarly publications enjoy copyright protection provided they are not a mere compilation of data.

The Swiss Copyright Act comprises a number of partial rights (Arts 9–15 CopA). They include, first, the exploitation rights, for example the right to produce and distribute copies of the protected work and to make it available (Art. 10 CopA). Moreover, the author has the right to recognition of authorship; the right to decide whether, when, how and under what designation the work should be published for the first time (Art. 9 CopA); and the right to the integrity of the work (Art. 11 CopA). In addition, there are rights that refer to individual copies of works (Arts 13–15 CopA), for example the right of access to the original. The individual rights can in turn be further subdivided. In the case of open access uses, and the agreements concluded in this connection, it is necessary in each case to check exactly which partial rights under Swiss copyright law are affected.

There are certain exceptions to copyright (Art. 19 and seq. CopA). Provided the use of a work is covered by one of these exceptions, it may take place freely, that is, without the consent of the copyright holder. However, the use of the work may be subject to remuneration (e.g. Art. 20 CopA). Of interest for open access uses are, in particular, the exceptions with regard to private use (Art. 19(1) point a CopA), use in enterprises (Art. 19(1) point c CopA), and the making of archive copies (Art. 24(1) and (1bis) CopA).

Source: Hilty, R. M. and Seemann, M. (2009). Open Access – Zugang zu wissenschaftlichen Publikationen im schweizerischen Recht (Expert opinion on open access commissioned by the University of Zurich). https://doi.org/10.5167/uzh-30945

In accordance with the exception to copyright provided for in Article 25(1) of the Swiss Copyright Act, published works (text, images, audio, film, etc.) may be quoted by anyone if the quotation “serves as an explanation, a reference or an illustration” (so-called documentary function of the quotation).

A quotation that serves only as a decorative illustration – for example a figure that has no substantive connection to the text – is not permissible.

Moreover, the size of the quotation must be justified by its purpose. In other words, only as much of a work may be quoted as is needed. In individual cases, this may be an entire work, for example a poem, if that is necessary for an analysis of the text.

Quoting means using – as a rule, an excerpt from – a protected work, word for word, note for note, etc. Conversely, this means that works that are not, or that are no longer, protected by copyright may be quoted without regard to Article 25 of the Swiss Copyright Act. So-called paraphrasing is not regulated by the exception with regard to freedom of quotation (Art. 25 CopA), either. Paraphrasing means merely restating or summarising the meaning of a (protected) textual work in another form. In contrast to quoting, when paraphrasing a text, one restates the content in one’s own words.

Quotations must be designated as such, and the source must be given (Art. 25(2) CopA). Moreover, provided the author can be determined from the reference, they must be named.

A person who does not identify a quotation as such is guilty of plagiarism because they claim to be the author of the text, the image, etc. Authors whose rights are infringed in this way can defend themselves on the basis of Article 68 of the Swiss Copyright Act.

Source: Kompetenzzentrum für digitales Recht (n.d.). Grundlagen des Urheberrechts: 5.5 Das Zitatrecht. https://ccdigitallaw.ch/index.php/german/chapters/5/55-das-zitatrecht

Making Documents Available in Repositories

A question that authors and repository operators alike often ask themselves in practice is: Are we allowed to make this document available to the public in repositories?

Although many publishers allow self-archiving in principle, policies in this regard vary from publisher to publisher. The Sherpa Romeo database provides details of publishers’ and journals’ open access archiving policies. Although it is unlikely that a publisher that does not allow a preprint or post-print of a work to be made available online will take legal steps to force its own authors to delete it, it is advisable to be legally on the safe side by checking on a case-by-case basis whether there are any legal impediments to self-archiving. In the following, we provide an overview of the legal aspects that must be considered.

When self-archiving articles that have already been published in a journal, authors are often obliged by the publisher to observe an embargo period between the date of publication and the date on which the work is made available in open access. Other conditions that may be imposed by the publisher relate to the version of the work that may be self-archived, and the inclusion of an addendum acknowledging the published source. For example, it is quite common for publishers to allow the author’s accepted manuscript version (also known as the post-print) to be self-archived in parallel with the publication of the article by the publisher. The author’s accepted manuscript (AAM) is the final author version after peer review and acceptance for publication but before formatting by the publisher. In contrast to the preprint – that is, the version submitted to the publisher, which has not yet been peer reviewed – the post-print does not usually differ substantively from the publisher’s version (also known as the published journal article or the version of record).

Some publishers now allow immediate self-archiving subject to certain terms and conditions. Authors whose publishing agreements include such passages should state them when depositing their articles in repositories. The passages in question are often specific addenda that are to be attached to the articles when they are being self-archived.

Example: If you wish to post your version of this article within your institutional repository please include the following wording: Author Posting. (c) Publisher X, YYYY. This is the author's version of the work. It is posted here by permission of Publisher X for personal use, not for redistribution. The definitive version was published in Journal of XXX, VolumeXX Issue X, Month YYYY. https : / /doi.org/XX.XXXX/XXXXXXX (Link to the DOI).

In Switzerland, if no agreement on copyright was concluded when the article was being published in a scholarly journal, the provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(3) of the Code of Obligations states: "Contributions to collections or anthologies and relatively lengthy magazine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article." Therefore, the authors of scholarly contributions, for example journal articles, may self-archive them in a repository or on another server three months after publication, provided the works deal with a topic in depth. In any case, the author’s accepted manuscript version (post-print) may be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher’s logo, which is protected by trademark law. However, there is no established judicial practice on the question of format.

It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply.

If an agreement on copyright, for example in a written publishing agreement, is concluded when publishing a contribution in a collection or an anthology (e.g. in a festschrift), the terms and conditions of that agreement apply.

Otherwise, the same holds as for the self-archiving of journal articles: The provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(3) of the Code of Obligations states: "Contributions to collections or anthologies and relatively lengthy magazine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article." Therefore, authors may self-archive scholarly contributions, for example book chapters, in a repository or on another server three months after publication, provided the works deal with a topic in depth. In any case, the author’s accepted manuscript version (post-print) may be used. According to the expert opinion by Reto Hilty and Matthias Seemann, the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher’s logo, which is protected by trademark law. However, there is no established judicial practice on the question of format.

It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply.

Many publishers now allow the self-archiving of such contributions even if the authors were paid a fee. It may therefore be worthwhile to enquire with the publisher.

If an agreement on copyright, for example in a written publishing agreement, is concluded when publishing an article in a newspaper, the terms and conditions of that agreement apply.

Otherwise, in Switzerland, the provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(2) of the Code of Obligations states: "Newspaper articles or relatively short passages of magazine copy may be published elsewhere by the originator at any time." This means that topical reports, for example newspaper articles, may be made available to the public in a repository or on another server at any time. In any case, the author’s accepted manuscript version (post-script) may be used. According to the expert opinion by Reto Hilty and Matthias Seemann, the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher's logo, which is protected by trademark law. However, there is no established judicial practice on the question of format.

It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply.

If an agreement on copyright, for example in a written publishing agreement, is concluded when publishing a monograph, the terms and conditions of that agreement apply.

Otherwise, in Switzerland, the provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(1) of the Code of Obligations states: "As long as the editions of the work to which the publisher is entitled have not yet been exhausted, the originator may not make other arrangements regarding the work or parts thereof to the publisher’s detriment." Therefore, authors may not make works such as monographs or textbooks available in open access in a repository in competition with the publisher as long as the edition is still in print. The self-archiving of versions that cannot be properly cited, and are therefore no real competition, is permitted. Such versions include, for example, files without original page numbers in disciplines where citations include exact page numbers.

It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply.

In the case of older monographs, it is worthwhile to enquire with the publishers, as it is possible that publication of the book has been discontinued or that the publishers have no objection to the monograph being deposited in a repository.

Most Swiss universities facilitate the digital publishing of dissertations. As a rule, responsibility for digital publishing lies with the university libraries, where you will obtain the information you need. Authors are entitled to publish their dissertations under the terms of an open licence.

However, if parts of the dissertation have already been – or are to be – published elsewhere, the terms and conditions of the corresponding publishing agreements or the dispositive statutory provisions must be complied with, and the submission instructions of the respective journals or publishers must be observed. It may therefore be appropriate to make only individual parts of the dissertation available in a repository and to withhold access to other parts. Moreover, the doctoral regulations of the respective universities or faculties apply.

Within the limits laid down by the Swiss Federal Act on International Private Law (PILA) and the Lugano Convention, authors and publishers may reach an agreement on jurisdiction and applicable law.

In the absence of such an agreement, it must first be clarified whether Swiss jurisdiction applies, which is the case, for example, if the author against whom an action has been brought, is domiciled in Switzerland. The competent court in Switzerland then determines the applicable law in accordance with the Swiss Federal Act on International Private Law (PILA). A distinction should be made here between matters of contract law (that concern a publishing agreement) and specifically copyright matters (that concern copyright).

  • In matters of contract law, the legal system of the state where the publisher has its establishment applies (Art. 117(2) PILA).
  •  In copyright matters, the principle of the law of the country where protection is sought applies (Art. 110(1) PILA). If, for example, the removal of a certain publication from a repository in Switzerland is requested, Swiss law applies; in the case of a repository in Germany, German law applies.

Liability Law

The Internet-based channels of scholarly communication also give rise to the question of who is liable in the event of an infringement for the information that has been made available to the public. It is important to determine the consequences under liability law that may arise for the operators of repositories, or for authors who make their documents available online. In this way, the liability risks can be assessed in advance and limited by means of appropriate practices or contractual arrangements.

The tasks of institutional repositories generally comprise depositing, managing and making available to the public documents produced by scholars and scientists of the respective universities or research organisations. When a document is registered in an institutional repository, it is not available online immediately. Rather, it undergoes quality assurance procedures, the extent of which vary from repository to repository. They may range from checking the metadata, through indexing and cataloguing, to substantive checks (on quality assurance in electronic archives in general, see the DINI Certificate for Open Access Publication Services 2019 and CoreTrustSeal)

If repository operators make scholarly works accessible without holding the necessary copyrights, they are guilty of an infringement of copyright. In this case, in Switzerland, legal remedies are available to the entitled party under Article 61 and seq. of the Federal Copyright Act (CopA). In particular, the entitled party may bring an action against the repository operator requesting that the infringement of copyright be remedied (Art. 62(1) point b CopA). Thus, the repository operator may be obliged to remove the works in question from the repository.

Also possible are financial consequences because of actions brought under the Swiss Code of Obligations; these actions remain reserved under Article 62(2) CopA. The main issue here are claims for damages with which, for example, the publisher wants to be compensated by the repository for the loss of profits resulting from the copyright infringement (Art. 62(2) CopA in conjunction with Art. 41 and seq. CopA). However, the entitled party must be able to prove this loss, which is likely to be difficult in practice because the establishment of a causal relationship between the action of the repository operator and losses on the part of the publisher will hardly be possible.

The holder of the infringed partial right (Art. 62 (1) CopA) or of an exclusive copyright licence (Art. 62 (3) CopA) is entitled to institute proceedings. In the case of the making available of a work in a repository, the rights in question are the online rights, which are usually held by the author or the publisher. Thus, it is usually the author or the publisher that is entitled to institute proceedings

Under Swiss law, the defendants may not only be the operator of the repository but also other persons who participated in the copyright infringement. In other words, not only may the principal infringer be sued but also instigators or accomplices (see Art. 50(1) of the Code of Obligations). If the online rights in a work are held, for example, by the publisher, and if the author nevertheless made the work available to the public in a repository, both the author and the repository operator may be sued. In the case of a claim for damages, the repository operator and the author would then be jointly and severally liable (Art. 50(1) of the Code of Obligations). The claimant may choose the party against whom they wish to bring an action and may decide whether they wish to request partial or full performance of the obligation from that party (Art. 144(1) of the Code of Obligations).

Repository operators may contractually pass on to the author the risk of being sued for monetary damages because of infringements of the rights of third parties. This is done by means of a contractual clause whereby the author undertakes to hold the repository harmless in the event of legal claims by third parties – that is, to bear the costs incurred or to pay possible compensation for damage.

From a practical point of view, it should be borne in mind that shifting the risk to the author in this way may reduce the attractiveness of the repository, and that fewer authors may be willing to make their works available to the public in the repository as a result. For authors, it is probably not always clear from their publishing agreements with publishers whether they are entitled to self-archive the works in a repository in parallel with publication. Therefore, the way in which liability for infringements is distributed is a key point in the agreement between the author and the repository operators.

Where no agreement on liability for infringements has been made between the repository operators and the author, the repository operators have recourse against the author only to the extent that the author is jointly responsible for the copyright infringement (and could therefore also be sued directly). Such joint responsibility is usually present if the document was deposited by the author themselves or with their consent. The respective shares that must be assumed by the repository operators and the authors are determined in the particular case by the court at its discretion (Art. 50(2) of the Code of Obligations).

In this context, the repository operators are classified as content providers, whose service goes beyond the mere technical storage and making available of documents that is performed by mere access providers. However, even a content provider is liable only to the extent that they failed to take possible and reasonable measures to prevent the infringements of rights. Repository operators can be reasonably expected to clarify the entitlement to the individual works under copyright law, and, if they are informed of infringements, to endeavour to remedy them. However, it would not be reasonable to expect repository operators to furthermore take note of the content of each individual work.

Self-archiving in the sense of self-posting refers to the individual, non-standardised archiving and making available to the public of publications, for example on the website of a university department or an institute, or on a private website.

Possible infringements when self-posting include in particular the violation of intellectual property rights, for example the copyrights or moral rights of third parties. When university members self-archive their works on their personal websites, the question of the responsibility of the university does not arise provided it does not operate the website and is not responsible for the content of the publication.

References

Further Reading

Content editor of this page: André Hoffmann (Main Library, University of Zurich)

Last updated: August 2021