SUISA

The Federal Law of 1 July 1993 on Copyrights and Neighbouring Rights (the Copyright Law) is the legal basis of reference for SUISA. The Copyright Law regulates the protection of authors, artists, record and video producers and broadcasting companies, and defines the obligations of the collective administration societies. It defines key terms such as «work» or «author», and enumerates the rights of an author in his works. The Law also places limits on copyright protection.

Pursuant to the Copyright Law, the author is the owner of his work. An author’s work can only be published, reproduced, performed in public, broadcast or otherwise disseminated with his or her consent. In exchange, the author is entitled to remuneration.<o:p></o:p>

The Copyright Law provides that all musical works, regardless of their style and purpose, are protected by copyright. A symphony and a radio jingle enjoy equal protection under the law. SUISA only manages what are known as «small rights», i.e. the rights to non theatrical music:

• non theatrical musical works, with or without lyrics, including oratorios;
• concert versions of theatrical works;
• ballet music performed or broadcast without dance;
• excerpts from theatrical musical works provided that they do not constitute complete acts and that the relevant performance, broadcasting or recording does not exceed 25 minutes, or 15 minutes in the case of videos and television broadcastings;
• musical works contained in feature or television films, except certain theatrical works specially recorded for television purposes.

SUISA is responsible for performance rights, broadcasting and retransmission rights, mechanical rights (i.e. for the production of sound and sound and video carriers or audiofiles), for royalties on blank media carriers and for rental royalties.

According to our Statutes, you must satisfy one of the following conditions:

• you must be the author or the arranger of a musical work;
• you must be a lyricist, arranger or translator of a musical work, or
• you must be the heir or the legal successor of an author of musical works.

In addition, SUISA requires you to have a special relationship with Switzerland, i.e. you should be a Swiss national or a Swiss resident. Since SUISA is also responsible for Liechtenstein, the same applies to Liechtenstein nationals and residents.

You can complete the application form on our website, or contact us at one of the following addresses:

for German-speaking Switzerland

SUISA
Bellariastrasse 82
Post box 782
8038 Zurich
Phone +41 44 485 66 66, Fax +41 44 482 43 33, authors@who-needs-spam.SUISA.ch

for French-speaking Switzerland and the Valais

SUISA
11bis, Avenue du Grammont
1007 Lausanne
Phone +41 21 614 32 32, Fax +41 21 614 32 42, auteurs@who-needs-spam.suisa.ch

for the Ticino

SUISA
Via Soldino
6900 Lugano
Phone +41 91 950 08 28, Fax +41 91 950 08 29, autori@who-needs-spam.suisa.ch

Once you have signed the rights administration agreement and paid the entry fee, you qualify as an associate member of SUISA.

Bear in mind that joining SUISA only makes sense if your works are already performed in public or will be so in the near future. Only then can SUISA assert your royalty claims and remit the proceeds to you.

You can become an ordinary member, with full voting and election rights, as soon as you have received at least CHF 2,000 in royalties, provided you have been an associate member for at least one year.

To join SUISA, you pay a one-time entry fee of CHF 100.- including 8% VAT. There is no additional yearly membership fee.

SUISA’s administrative costs for rights management are financed by a cost-coverage deduction charged to domestic and foreign royalty income. The cost coverage deduction equals 4% for foreign income; the annual cost coverage deduction charged against income from Switzerland and Liechtenstein is set annually.

As an author, you can decide if, when, how and under what title your works will be made public. You can, for example, decide whether or not you will allow your work to be broadcast, performed in public or recorded on CD. In exchange, whether you are a composer, a lyricist or an arranger, you are entitled to a fee. In principle, authors are entitled to one tenth of the proceeds from the exploitation of their works.

In addition to these «rights of use», as an author you have personal rights. You can decide, for example, under what name your work may be published, whether or not your music can be changed, the lyrics translated or the work used for advertising purposes.

Lastly, although you cannot prevent your works from being copied for private use, or CDs from being rented out, you are entitled to a remuneration which SUISA collects on your behalf.

No. Band members can only join as individuals, provided they are the authors of the music or lyrics.

Performing artists are singers or instrumentalists who perform or record compositions, for example. If the performing artist is also an author, naturally he or she can become a member of SUISA.

The concession of the Swiss radio broadcasting company (SRG) stipulates that Swiss music must be reasonably represented in the company’s broadcasts. But the term «reasonably» is not defined. The share of Swiss music on SRG broadcasts has risen from 7% to 12% in the past few years. By comparison with its European counterparts, however, SRG is in last position. SUISA and many well-known representatives of the Swiss music industry are fighting for the introduction of a quota, which in our opinion should be of about 20%.

SUISA does not publish scores or sound carriers, nor does it sell any. We will be happy to provide information on Swiss works (composers, authors and publishers) and tell you where you can buy the relevant scores and CDs.

SUISA has concluded reciprocity agreements with over 100 foreign sister societies. Through these reciprocity agreements, SUISA represents the members of its sister societies in Switzerland and its sister societies represent SUISA’s members abroad. If one of your works is performed at a concert abroad, for example,  the local organisers must pay the corresponding royalties to the society in that country. The latter will remit the royalties to SUISA who will pass them on to you.

It can happen that a sister society fails to record and settle a use abroad. That is why we recommend that you inform us as soon as you become musically active abroad. To clarify the status of foreign royalty entitlements, we need the following information:

Concerts

• date and place (city, country, name of theatre, club or other venue)
• organiser’s name and address (if known)
• all works performed (list)
• the printed programme (if available)

Broadcasts

• date of broadcast
• name of radio or television station
• name of the program (if known)
• all works broadcast (list)

Sound Carriers
Send SUISA (attn Authors Department) a copy of the foreign sound carrier. The sound carrier contains the indications we need to conduct inquiries with our sister society. If you wish, we will return the sound carrier a few days later.

SUISA manages the rights to non theatrical music: it does not manage any rights to theatrical musical works. Theatrical musical works are works with a plot, portrayed by persons playing set roles, and which are so reliant on music that they cannot generally be performed or broadcast without it (for example, musicals, operas, operettas and ballets).  All other musical works are non theatrical musical works and SUISA manages the corresponding rights.

The rights to theatrical musical works are managed directly by the author, by his publisher or by SSA.

No. You can regulate the use of your music with your publisher at your discretion. However, as regards the publisher's share of the royalties, you must respect the limits set in the Distribution Regulations. SUISA treats all rights on an equal footing and makes no distinction between those assigned directly by the author and those assigned indirectly through a publisher.

For detailed information on the rights administration agreement, please see the «Explanatory note on the rights administration agreement».

Under the terms of the rights administration agreement, the author transfers a number of his rights to SUISA which administers them on a fiduciary basis on his behalf. The agreement requires SUISA to distribute the royalties collected by it to the relevant authors.

Yes. However, foreign collective administration societies cannot operate in Switzerland or Liechtenstein. If a reciprocity agreement has been signed with SUISA, SUISA will represent them here. If you join a foreign society, SUISA will represent your rights in Switzerland and Liechtenstein and will transfer your royalty entitlements to the foreign company who will then pass them on to you.

Yes. Authors who are not members of SUISA can manage their own rights and can negotiate royalties directly with users. Individual rights management is complicated, however, and extremely costly in terms of time and effort. For example, how will an author know when one of his works is played on the radio in Switzerland or elsewhere? Mass uses, via internet in particular, make individual rights management even more difficult, if not impossible.

SWISSPERFORM manages the rights of performing artists, record companies and broadcasting companies. When a rock band gives a live concert, the musicians are paid a fee. But what do they receive when a DJ plays their music? Performers’ indirect performance rights are also protected by law. SWISSPERFORM collects the corresponding royalties on their behalf.

Private copying is allowed. Personal data or music can be copied onto blank CDs. It is impossible to check who is copying what. That is why a royalty fee is also charged on blank CD data carriers (CD-R data).  At 5 cts per hour or per 525 MB storage capacity, the royalty is significantly lower than for blank audio CD-Rs or audio cassettes, which are subject to a charge of 33 cts per hour or per 525 MB storage capacity. The rates were set taking into account the fact that personal data can also be stored on these carriers.

 

No remuneration is charged on CDs or music files purchased on the internet for private use. Nor is any remuneration due since private use is authorised by law. Anybody who wants to copy music files from a CD or the internet for his private use can do so unrestrictedly. The law provides for a fee on blank media carriers (CD, DVD, MP3 players and the like), payable by the maker or importer (not the buyer). The consumer never has to pay a royalty. The producer or importer may, however, pass on the cost to the consumer.

 

You may burn your own CDs and DVDs provided

• the CD or DVD is for your own private use, or
• the CD or DVD is a gift for a close friend or relative.

You may not burn your own CDs and DVDs if

• you intend to sell the them without having obtained the authorisation of the record company or a licence from SUISA, or
• the CD or DVD is a gift for someone other than a close friend or relative.

The Copyright Law authorises the use of a work «in the personal sphere or within a circle of persons closely connected to each other, such as relations or friends». According to case law and literature, the circle is construed very restrictively. Moreover, you have to burn the CD or DVD yourself; you cannot pay a reproduction facility or anyone else to do it for you. In burning your own CDs or DVDs, you should bear in mind that you are not just damaging the record companies, you are jeopardising the livelihood of authors and performing artists.

 

For whole music titles offered (generally against payment) on demand (MOD), and for video on demand (VOD), contracts are negotiated individually with the users. For music and audio, the contracts are based on the rules agreed with the recording industry. Currently, the royalty is 8% of income with a minimum of CHF 0.10 per use (download or listening) for works not exceeding 4 minutes.

Information, tariffs, forms and licences are available from:

for German-speaking Switzerland and Canton Ticino:
SUISA Zurich, Frank Dietiker, +41 44 485 66 66

for French-speaking Switzerland:
SUISA Lausanne, Olivier Mottier, +41 21 614 32 32

 

Broadcasting uses are (generally) direct transmissions via internet of live music or events, or radio and television programmes broadcast via internet. These online uses of music are analogous to broadcasts.

Royalties are charged as a percentage of the income or costs for the relevant use in accordance with the tariff for broadcasting rights (CT S). All amounts paid to the broadcast provider by way of sponsoring, bartering, advertising, subscription or access fees, etc. qualify as income; on the other hand, all expenditures in connection with the use of the music including, for example, for recording equipment, server storage space or personnel costs in connection with the «broadcast» qualify as costs.

Deferred transmissions qualify as on demand.

Information, tariffs, forms and licences are available from:

for German-speaking Switzerland and Canton Ticino:
SUISA Zurich, Frank Dietiker, +41 44 485 66 66

for French-speaking Switzerland:
SUISA Lausanne, Olivier Mottier, +41 21 614 32 32

 

If you use music in combination with images or other content (e.g. if you synchronise a sound or video track), you first have to obtain the synchronisation rights from the right-holders.

In principle, SUISA charges royalties in accordance with the VN Tariff. This is the applicable tariff for the production of audiovisual media carriers; since 2008, under certain conditions, it also applies to lump-sum licences for music offered online.

Information, tariffs, forms and licences are available from:

SUISA Lausanne / Lysander Gelewsky (phone 021 614 32 32)

 

Sound samples are short excerpts of individual titles published online in a CD catalogue, on a band’s website or designed to promote a band or an event. As a rule, sound samples are simply audio-files freely made available on a website.

Royalties for promotional sound samples are generally charged on a lump-sum basis. The lump-sum royalty is CHF 100.- (not including VAT) per quarter, or CHF 50.- (VAT excl.) if no more than 20 samples are placed on the server per quarter.

Information, tariffs, forms and licences are available at:

for German-speaking Switzerland and Canton Ticino:
SUISA Zurich, Roger von Rotz, +41 44 485 66 66

for French-speaking Switzerland:
SUISA Lausanne, Olivier Mottier, +41 21 614 32 32

It is common ground that uploading, i.e. the placing of protected works online, is subject to the consent of the right-holders (authors, or copyright collecting societies on their behalf, record producers etc.).  Users of file-sharing sites who do not have such consents are acting unlawfully. The prevailing view, however, is that private downloading in Switzerland does not require the author’s consent – even if the music was unlawfully made available. Since there is no legal precedent so far, the question cannot be conclusively decided (in Germany, for example, it is unlawful to download music files that are «clearly» illegal).

In practice, the question never arises in this form. If you have relatively recent P2P software, the titles on your hard disk automatically become available online. This is illegal and unless you obtain the necessary licences you may be exposing yourself to prosecution. Besides, P2P sites largely contribute to the steep decline in record sales; they damage the music industry and jeopardise the livelihood of authors and performers. When you engage in P2P file-sharing, you cause prejudice to the very artists you love.

 

 

First and foremost, the provider. The provider is the natural or legal person who makes a protected work publicly available on a server. As the provider, he is also responsible for the website’s contents and must apply for all the necessary licences. Secondly, responsibility lies with the service provider, who can be made liable.

Yes. Basically, it makes no difference whether or not a musical work is used commercially on the internet.

Online uses of musical works are basically no different from any other uses. SUISA applies its existing tariffs and calculates the royalties by analogy.

There are three categories of uses on the internet:

• uploading musical works on a server;
• making musical works available online;
• downloading musical works from the internet.

The internet is not a legal no man’s land. The Copyright Law regulates all uses clearly. For example: Uploading a musical work on a server is equivalent to (digitally) reproducing that work.

 

Yes. As the author of the music or lyrics of a musical work, you alone can decide how the work is used. If you have assigned part of your rights, you should be aware of the two following points:

• If you are a member of SUISA, you may only publish your work free of royalties on your own website. If your work is published on a third-party website such as MP3.com, the owner of the website has to apply for a licence and pay the licence fee.
• If you have a contract with a publisher or a recording company, you have transferred certain rights to them. If you publish a work online that is covered by such a contract without the consent of the publisher or the recording company, you will be infringing your contract.

Please contact one of the following addresses:

German-speaking Switzerland and Ticino:
SUISA
Reinhard Ruoss
Bellariastrasse 82
Postfach 782
8038 Zurich
Phone +41 44 485 66 40
Fax +41 44 482 43 33
email DJ@suisa.ch

French-speaking Switzerland and the Valais
SUISA
Jean Daniel Volet
11 bis, Avenue du Grammont
1007 Lausanne
Phone +41 21 614 32 51
Fax +41 21 614 32 42
email DJ@suisa.ch

Yes, of course.  A DJs can become a member of SUISA provided he is the author, lyricist or arranger of a musical work. Remixers also qualify as arrangers.

To join SUISA as a member, you must pay the one-time entry fee of CHF 100.- (including 7.6% VAT) and sign and return the rights administration agreement to SUISA.

Bear in mind that joining SUISA only makes sense if your works are already performed in public or will be so in the near future. Only then can SUISA claim your royalties and remit the proceeds to you.

Joining SUISA

SUISA distributes royalties to the beneficiaries based on the lists communicated to it. DJs, who usually play the same repertoire at periodic frequencies (e.g. for a week or a month), can send in their lists periodically (weekly, monthly); lists can also be sent electronically.

SUISA needs the lists to distribute the royalties paid by the club owner.

If you record a musical work that is still protected by copyright, you have to notify to SUISA. SUISA manages the rights of nearly all Swiss and foreign authors and can thus issue a licence against payment of a royalty.

Fill in the application form for a licence to record music on a sound carrier. SUISA must receive the duly completed form at least ten days before the recording date.  SUISA will then authorise the reproduction facility to produce the sound carrier. Without SUISA’s authorisation, the reproduction facility cannot proceed.

SUISA only authorises the original recording. For re-recordings from existing sound carriers you also need an authorisation from the producer. The applicant is responsible for obtaining the authorisation; it must be annexed to the recording licence application.

Not without a licence from the right-holders. The right-holders are composers, lyricists and arrangers (authors), publishers, performers and record companies.

SUISA will provide a license covering authors’ and publishers’ rights against payment of a fee. The amount of the fee depends on the relevant tariff. If you use third-party recordings, you will also need a licence for the performer’s and record producers’ rights. You may apply to the performer’s record company for one. You will have to negotiate the royalty for the recording rights. Royalties are payable even if you send the mix tape to an organiser free of charge or make it freely available online.

The rights administration agreement concluded between you, as the author, and SUISA covers all your works without exception. «A la carte» representation is not possible. Accordingly, you have to declare each work you create.

You may, however, exclude certain rights from the rights administration agreement.

SUISA manages the rights to non theatrical music: it does not manage any rights to theatrical musical works. Theatrical musical works are works with a plot, portrayed by persons playing set roles, and which are so reliant on music that they cannot generally be performed or broadcast without it (for example, musicals, operas, operettas and ballets).  All other musical works are non theatrical musical works and SUISA manages the corresponding rights.

The rights to theatrical musical works are managed directly by the author, by his publisher or by SSA.

Duly complete a Declaration of Works form and send it to SUISA with the score and lyrics or a recording (on a CD, record, demo-cassette, minidisk or other sound carrier). If you declare a work as a publisher, you must also attach the publishing or subpublishing agreement (the original or a copy).

When a person takes another’s work and releases it (with or without changes) as his own, he is guilty of plagiarism.  The theft of ideas cannot be prevented.  But in the event of a dispute concerning the authorship of a work, you can easily prove when your work was created by following one of these two steps:

• if you are a member, register your works with SUISA;
• and, whether you are a member or not, send yourself a recording of the work or the score by mail. The letter or package should be registered; on no account should you open it.

Under the Copyright Law, all works are automatically protected from the moment they are created, even if they are not registered. But, since it may be necessary to prove the date of authorship in case of a dispute, two steps are recommended:

• register your works with SUISA (for members)
• send yourself a recording or a score of the work by mail. The letter or package should be registered; on no account should you open it.

These steps are not indispensable for the protection of your works but they will make it easier to establish proof should the authorship and date of a work be disputed. SUISA members may download the declaration of works form here.

As a rule, you should fill in a separate declaration form for each work. But if the same person co-authored several works and all the indications are identical, then a single declaration form with a list of the individual titles will be sufficient.

The title on the declaration of works must be identical to that on the sound carrier and performance declarations. Different spellings may hinder proper identification, preventing SUISA from paying the royalties.

In addition to the declaration of works, SUISA needs either the score and lyrics, or a sound carrier (which may be a demo recording); in the case of a publisher’s declaration of works, the publishing or subpublishing agreement must also be attached.

If you declare an arrangement of a copyrighted work, SUISA needs the consent of the publisher or composer of the original work. To set a protected text to music, you need the publisher's written approval or that of the poet or his/her heirs. Failing such consent, SUISA cannot register the arrangement or setting.

If you declare an arrangement of a non protected work, you have to send in the master so that SUISA can establish its copyrightability.  This applies to works whose author has been dead for 70 years or more, or whose author is unknown, as well as to popular works that are considered traditional folklore.

SUISA microfilms scores, contracts and licences – with the exception of voluminous and/or large format full scores – and sends them back. Sound carriers are archived with the Swiss National Sound Archives.

The names of all authors (composers, writers of lyrics, arrangers, sub-titlers etc.) who participated in a work must be specified on the form (one under the other, not one next to the other please). All participants must sign the form. If a signature is missing, SUISA will send the form back with a reminder.

Declarations filed by the publisher need only be signed by the latter. The approval of the participating authors (and arrangers, if any) is evidenced by their signatures on the attached publishing agreement. Publishers are required to file a declaration for all works, even those already declared by their authors, attaching the relevant supporting documents.

Unless participants have agreed to a different distribution key, the «Distribution Key» section is generally filled in by SUISA in accordance with the current distribution regulations. In that case, the authors should fill in the corresponding percentages, which must comply with the distribution regulations.

Yes, for informations and access for declaring your works online see www.suisa.ch/en/my-account/

Declaration forms can be downloaded from SUISA's website, it is possible to file declarations online.

These works must cannot be registered online and still have to be declared on the relevant printed form:

• Works created for setting sound to an audiovisual production;
• Arrangements of free (i.e. no longer protected by copyright) original works
• literary works (texts without music)

In Switzerland, works are protected by copyright until 70 years after the author’s death. If several persons co-authored a musical work, the 70-year term starts running from the death of the longest surviving author.

The two declarations serve different purposes: the sound carrier declaration filed by the record producer is necessary to obtain a sound carrier production licence from SUISA. It is an application for a licence.

The declaration of works filed by an author or a publisher enables SUISA to register the musical work and all participating authors and publishers: without a declaration of musical works, SUISA cannot pay royalties.

NB. A sound-carrier declaration does not replace the declaration of work which still needs to be filed.

Yes. Every composer, lyricist or arranger is free to use one or more pseudonyms. Pseudonyms are subject to professional secrecy.

However, pseudonyms can lead to confusion with other authors' names. Therefore, we recommend that before selecting a pseudonym you consult SUISA  to verify that your choice of name (or one similar) is not already in use.

No. The basic repertoire is a list of musical works that you perform regularly. SUISA needs these lists to distribute the royalties paid by the concert organiser or club owner. Titles of your own compositions must be filed separately with SUISA by means of a declaration of musical works.

The declaration of works filed by an author or a publisher enables SUISA to register the musical work and the participating authors and publishers: without a declaration of musical works, SUISA cannot pay royalties.

No. SUISA does not accept waivers from its members, in particular because:

• permitting waivers could make artists more vulnerable to pressure from users: for example, organisers could decide only to employ bands which are prepared to waive royalties on their own compositions;
• processing such waivers would engender huge additional costs.  Those costs would have to be borne by all members, including those who do not send in waivers.

In certain exceptional cases, however, SUISA itself can decide to waive royalties, for example, for charity events.

In a few exceptional cases, SUISA can waive royalties on the production of sound carriers. For example, for an author’s CD of his own songs produced for demonstration purposes. In that case, the following conditions must be satisfied:

• waivers are only possible if an author holds 100% of all rights in the musical work(s);
• the sound carrier must be produced by the author himself or for his account.

The waiver must be communicated to SUISA in writing, duly signed.

No. SUISA cannot accept your waiver. As an author you can, however, sign an addendum to the rights administration agreement and manage your own mechanical rights for the production of cinema copies of individual films (but no commercials or sponsoring billboards).

The rights administration agreement does not allow SUISA members to conclude any so-called «buy out agreements».

SUISA's tariffs contain the royalty rates for the use of authors’ rights. SUISA's distribution regulations stipulate how royalties are distributed to the beneficiaries. In principle, SUISA distinguishes between distribution on a per-work basis (royalties are distributed for each work based on programme lists) and distribution on a lump-sum basis (based on statistics, broadcasting programmes and basic repertoires).

Royalties are paid to the relevant authors (composers, writers of lyrics, arrangers) and publishers in Switzerland and – via SUISA’s sister societies – abroad. Each beneficiary receives a statement and the settlement of his share.

As a rule, SUISA follows the following settlement schedule:

• in March: public performances and broadcasts abroad
• in May: CDs, records and music cassettes produced abroad (1st part)
• in June: public performances and broadcasts in Switzerland and Liechtenstein
• in October: CDs, records, cassettes and videocassettes produced in Switzerland
• in December: CDs, records and music cassettes produced abroad (2nd part).

In addition to the administration cost coverage contribution, SUISA makes the following deductions:

• 7,5% of revenues from performance and broadcasting in Switzerland are paid to SUISA's Welfare Fund for authors and publishers;
• 2,5% of revenues from performance and broadcasting in Switzerland are paid to the SUISA Foundation for Music which promotes musical creation in Switzerland.

Revenues from abroad are distributed to SUISA members and principals after a deduction of 4% for the additional administrative costs. Legal provisions concerning withholding tax are reserved.

Yes. The royalties you receive from SUISA are part of your income and are subject to tax.

No. Authors’ services are exempt from value-added tax.

No. If a band wants to play a cover version, it does not need to ask for the original author’s consent. To enable SUISA to pay the royalty, the band must indicate the author of the original on the list the organiser sends SUISA after the concert.

If a band wants to record a cover version, they have to enter the title of the song and its author’s name in the «List of music to be recorded» section of the sound carrier declaration so SUISA can transfer the royalty.

Arrangement is the term used to describe a musical work which is modified so that it becomes an original in its own right while retaining the recognisable originality of the first composition. Arrangements are protected by separate copyrights.

No licence is required to arrange or change musical works that are not or are no longer protected by copyright. But if the work is protected, the right-holder must authorise the arrangement. If the work is published, you have to contact the publisher.

Translation is an arrangement. No licence is required to translate, arrange or change texts that are not or are no longer protected by copyright. But if a text is protected, the right-holder must authorise the translation or arrangement. If the work is published, you have to contact the publisher.

If the author has been dead for 70 years or longer, you are free to set his texts to music.

For all other texts, the publisher must issue a written authorisation. For unpublished texts, you need the consent of the authors or his heirs. SUISA will help you find the addresses. Without a written consent, you may not use the setting outside your private sphere: you may not perform it publicly, record it on a sound carrier or publish it.

A cover version is a musical work that is deliberately re-enacted and possibly re-interpreted. Cover versions do not go as far as arrangements. A cover version does not constitute a new work in its own right. Cover versions cannot be protected by a separate copyright.

 

The rumour that sampling is allowed free of charge up to two measures, nine tones or 10 seconds of music is entirely without foundation. No clean line can be drawn between lawful sampling and unlawful sampling. Copyright law does not protect the entire work only, it also protects the parts of a work which qualify as a work in their own right. The melody, a solo or other elements of a work may therefore be protected; they may not be freely used if they are characteristic of the original work. That is the case if the sequence is original and clearly recognisable. This can only be decided on a case by case basis. It follows that the more marked the characteristics of the sampled element are, the less chance you will be able to use that element free of charge.

If you want to include part of somebody else’s protected work in a new work which you intend to publish, you have to have a licence to use a part of that protected work. You have to apply to the publisher or the author of the original composition for a sampling agreement.

As a rule, samples are taken from works which are commercially available on a CD or other sound carriers.  In that case, you must also ask the record company for an authorisation to use the sample.

There are three types of remix depending on who produces it and whether or not samples are used:
1. Remix by the author of the original work without samples from third-party works

The producer of the remix needs the approval of the company which recorded the original work and of the work’s co-authors (if the original work was composed by more than one author).

2. Remix by the author of the original work with samples from third-party works

The remixer also needs the authorisation of the right-holders (author, publisher and record producer) of any third-party works used in the samples. Moreover, he needs the approval of the original recording company and of his co-authors, if any.

3. Remix by a third party using samples from third-party works 

The remixer needs the authorisation of the author or publisher (rights in the work) and of the record company (recording rights). This agreement also covers the right to use samples from the original work. If the remix contains samples from the works of other third parties, authorisation must also be obtained from the corresponding right-holders (author, publisher, record company).

 

A remix is an arrangement of the original work and can therefore be protected by a separate copyright.

Contact the Publishers Department at SUISA. Applicants who can show that they are active as original publishers or subpublishers qualify for SUISA membership. Once you have entered into publishing contracts with authors or other publishers, you may apply for membership. Your application must include

• a duly completed application form;
• a copy of the extract from the trade register (mentioning the publishing activity) or, for firms that are not registered, an equivalent document for your firm;
• declarations for the works published by your firm, accompanied by the relevant publishing contracts and supporting documents.

To join SUISA, you pay a one-time entry fee of CHF 200.- including 8% VAT.
Once you have signed the rights administration agreement and paid the entry fee, you qualify as an associate member of SUISA. After a period of at least one year, and provided you have earned the minimum amount of royalties set by SUISA's Board, you become a member. Membership entitles you to vote at, and be elected by, the General Assembly.

The most suitable legal form for a publishing house depends mainly on the type and scope of planned publishing activities. There is a suitable legal solution for every situation:

• One-man firm
  Suitable for activities conducted on a small scale by one person; simple and inexpensive; registration with the trade register is mandatory as of CHF 100,000 in turnover. Disadvantage: liability extends to all assets, including personal assets.

• Partnership
  Suitable for small publishing houses whose partners are willing to commit themselves, their work and their assets entirely. Registration with the trade register is compulsory and it is advisable to conclude a partnership agreement. Disadvantage: All partners’ liability extends to all their assets, including personal assets.

• Limited liability company
  Suitable for small and medium sized undertakings; CHF 20,000 minimum capital requirement. Registration with the trade register is compulsory; a public notary is needed to form the company. Advantage: liability is limited to the company’s share capital.

• Public limited company
  Suitable for medium and large-sized publishing houses, minimum share capital requirement CHF 100,000. Registration with the trade register is compulsory; a public notary is needed to form the company and the tax rate is higher. Advantage: liability is limited to the company’s share capital.

Further guidance can be obtained from notary offices or the trade registry.

Firstly, the rules on the formation of companies set out in the Civil Code must be observed (Article 944); depending on the legal form chosen, the rules vary.  Care must be taken to avoid a name which could be confused with a company which already exists.  Accordingly, we recommend that you contact our Publishers Department before taking a final decision. Companies are protected under commercial law as soon as they are entered in the trade register. Furthermore, the rules against unfair competition also protect you if you can prove that you were first to use a name. It is also advisable to file the name as a brandname with the Federal Institute of Intellectual Property, for Switzerland and maybe even internationally.

Federal Institute of Intellectual Property (IGE)

Publishers and authors (composers, lyricists and arrangers) sign an original publishing agreement. Under the terms of that agreement, the publisher undertakes to artistically and economically exploit the works transferred to him at his own cost and risk. In particular, that involves

• producing and distributing scores of the work (own publishing rights);
• finding a record company to distribute recordings of the work;
• finding a producer to use the work for a film;
• finding an artist to play the work; or
• finding a musician to arrange the work.

In other words, the publisher of a work is its manager. A publisher is not the same thing as a record company. The publisher has to find a record company to produce and publish the work. Many record companies have their own publishing departments and handle both sides of the business for economic reasons.

For rights’ management purposes, we distinguish between the following contracts:

• (original) publishing agreements
• co-publishing agreements
• subpublishing agreements
• sub-subpublishing agreements
• general agreement

Publishers and authors (composers, lyricists and arrangers) sign an original publishing agreement where the publisher undertakes to distribute the work within a reasonable period and to pay the author a fair remuneration. Such agreements are generally concluded for an indefinite duration expiring at the end of the copyright protection period, i.e. 70 years after the author's death. SUISA only recognises publishing agreements with a term of at least 5 years.

Original publishing agreements must contain and regulate the following points at least:

1) Name and address of the contractual partners

2) Title of the work, name of all authors
As a rule, agreements cover one or more works, for example all the titles on an album. The names of all the participants in a work must be clearly listed in the agreement or in an annexe to the agreement. The agreement or the annexe must contain the following indications:

• title of the work
• full names of all composers
• full names of all lyricists
• full names of all arrangers

3) Transfer of rights

Under a publishing agreement, the author usually grants the following rights to the publisher:

• graphic rights: the publisher has the right to publish the work as a score, or to print the lyrics.
• SUISA rights: these are the rights which the author assigned to SUISA pursuant to the rights administration agreement; they include performance and broadcasting rights and mechanical rights. They are therefore transferred to the publisher for “joint administration” with SUISA.
• other rights: all other rights which are neither graphic rights nor SUISA rights, in particular, arrangement rights, the right to use the work for advertising purposes, and synchronisation rights. In other words, a publisher may authorise a third party to arrange the work, use it for advertising purposes, or use it in conjunction with another work (e.g. for a film).

4) Obligations of the publisher
In a publishing agreement, the publisher usually assumes the following obligations:

• obligation to publish
• commitment to the work during the term of the contract
• not to publish the work without the authors’ name
• obligation to inform

5) Remuneration
Remuneration from the exploitation of a work is generally apportioned as follows:

• Graphic rights or publishing rights: the author receives from 10% to 15% of the retail price.
• SUISA rights: distributed by SUISA in accordance with the regulatory distribution key. As a rule, the regulatory distribution key is:
  - mechanical rights: the publisher receives 40%, or 50% if he pays the sound (and video) carrier production costs. The author accordingly receives 60% or 50%.
  - Performance and broadcasting rights: the publisher receives 35% and the author 65%. The publisher thus receives a share of the royalties when the work is performed at a concert or is broadcast on the radio.
• Other rights: the proceeds from other uses such as advertising are generally split equally between the publisher and the author.

6) Term of contract
Publishing agreements should always start from 1 January – even if they are signed on another date. Accordingly, the term should expire on 31 December.
The contractual term is the period of time during which the publisher is entitled to exploit the assigned rights in the work. The contractual parties may set the contractual term at their discretion. Publishing agreements are often concluded for the legal term of copyright protection, namely for 70 years from the date of the (last surviving) author’s death. That is the maximum legal duration. SUISA requires a minimum term of five years.

7) Contractual territory
Publishing rights may be global, or limited to a specific territory. The publisher is obliged to manage the work in respect of the entire contractual territory. But since many publishers do not have foreign branches, they usually entrust the foreign rights to subpublishers in the relevant countries. When a third party shares in the publishing income, the author’s share is reduced.

8) Bankruptcy clause
Every publishing agreement should contain the following clause: “If insolvency or bankruptcy proceedings are initiated by or against the publisher, if he liquidates his business or if he is otherwise incapable of paying his debts, this agreement shall immediately terminate and all rights granted to the publisher shall automatically revert to the author.”

9) Jurisdiction
Every publishing agreement should contain the following clause: “All disputes arising hereunder are subject to the exclusive jurisdiction of the courts at the defendant’s head office/place of residence.” This means that the applicant has to file his lawsuit with the court where the other party has its office or residence.

10) Place, date and signature of all contractual partners

A co-publishing agreement is a contract concluded between two or more publishing houses in respect of works co-authored by several authors who are contractually tied to different publishing houses. The agreement specifies how the tasks are divided between the parties: it is quite possible, for example, for one publisher to handle sound carrier production while the other is responsible for publishing the scores.

Sub-publishing agreements regulate the relationship between the original publisher and the sub-publisher who is granted sub-publishing rights in one or more works for a specific territory. SUISA requires sub-publishing agreements to have a minimum duration of three years. Such agreements can be renewable at maturity.

For mechanical reproduction rights, the sub-publishing agreement must specify which of the two following clauses applies:

• production: participation of the sub-publisher in all sound carriers produced in the contractual territory, regardless the country of sale, or
• sales: participation of the sub-publisher in all sound carriers sold in the contractual territory, regardless of their origin.

The transfer of rights to foreign sub-publishers and the assumption of subpublishing rights by Swiss publishers must be communicated to SUISA by means of a declaration of works. The sub-publishing agreement – or a copy there of – must in any event be attached to the declaration of works.

Conversely to sub-publishing agreements, which apply only to specific works, general agreements provide for the assignment of subpublishing rights to all a publisher's works, namely to the publisher's entire publishing catalogue. General agreements cover all the works published by the publisher before the agreement was signed as well as any works he subsequently acquires.

For SUISA, agreements come into force on 1 January and expire on 31 December. For agreements stipulating other dates, the applicable dates are the 1 January preceding the date the agreement came into force and the 31 December following its expiry.

SUISA's distribution rules regulate the effective timing of the transfer of sub-publishing rights from one publisher to another.

Yes. If the performer is also the composer, lyricist or arranger (author), and is a member of SUISA, he has assigned his rights to SUISA and SUISA collects the royalties on his behalf. Accordingly, he no longer holds those rights and cannot negotiate payment directly with the organiser.

Do I have to pay royalties when

• admission is free?
• the event was a non commercial event?
• the event made a loss?

Yes. The economic success of an event is the organiser’s affair. Royalties are fixed costs like beverages and lighting, and must be paid whether or not the event turns a profit.
Do I have to pay royalties for

• private events or
• club events not open to the general public?

For private events you do not need a licence and you do not have to pay royalties. However, the term «private» is restrictively defined by law: it applies only to a single individual who enjoys music with a small circle of close friends or relatives (Article 19(1) (a) of the Copyright Law). It follows that, even though they are not open to the general public, events organised by clubs, associations, companies, army units and the like are not private events.

In that case, you may be prosecuted. SUISA can also impose a 100% surcharge if the requisite information is not even provided after a reminder. If payment is refused repeatedly, SUISA may issue a music ban and prohibit you from using music publicly.

The musicians’ fees remunerate their performance. Their fee does not cover the authors’ creative work or the right to perform the authors’ works. The performer and the author are two legally separate persons even if they may be one and the same individual. Each of the performer and the author is entitled to remuneration: the author is entitled to a royalty and the performer to his fee.

Yes. You have to send SUISA a list for all the artists. SUISA has to collect royalties even for authors who are members of foreign collecting societies. If the author has not transferred his rights, you have to pay him individually. Royalties are not due for works which are not arranged and whose author has been dead for 70 years or longer.

SUISA requires a list of works performed to be filled in for each concert, even if the client believes that the repertoire only contains unprotected works. It is hardly possible for an organiser to check a complete programme for all the relevant points.

No. But you still have to provide SUISA a complete, detailed list of all the works. If the musicians only performed works in the public domain, naturally you will not be charged any royalties.

SUISA has concluded reciprocity agreements with over 100 foreign sister societies. By virtue of those agreements, it is also obliged to collect and pass on the royalties for foreign authors.

No. Rental royalties cannot be included in the price of videos and DVDs since the Copyright Law provides that only collective administration societies are entitled to collect rental fees (Article 13(3)). The higher price for rental cassettes is due to the exclusivity period during which films are not allowed to be broadcast on television.

Royalties vary depending on how music is used.  For example, royalties for concerts are higher than for retail outlets playing background music. This is due to the different values:  you go to a concert essentially only for the music, whereas when you are shopping, the music in the background is of secondary value. The royalties for the various types of music uses are set out in our tariffs. LINK

The tariffs of the five Swiss collective administration societies must comply with the equity principle enshrined in the Copyright Law. In setting its tariffs, SUISA takes the following criteria into consideration:

• the proceeds generated by the use of the music or, alternatively, the costs in connection with such use;
• the type and number of works used; and
• the breakdown between protected and non protected works.

As a rule, royalties do not exceed 10% of the proceeds (for example, ticket sales) or costs (for example, performers' fees).

The law requires all Swiss copyright societies to issue tariffs for their royalties. The tariffs are negotiated with representative user associations. The Federal Arbitration Commission, an equal representation body elected by the Federal Council, approves the tariffs which are then published in the Swiss official trade journal (Handelsblatt/Feuille Officielle Suisse du Commerce). This procedure is designed to ensure that the tariffs are not abusive.

All musical events which are not private affairs have to be declared. You do not need a licence to play music at an event attended by a small circle of close friends and relatives, such as a birthday party or a wedding. But as soon as you go beyond the limits of your private sphere, you have to declare the event and obtain a licence from SUISA.

The organiser has to apply for the licence. The organiser is the person responsible for the use of the music, e.g. the owner or operator of a club, a radio or television station, or the association organising an event.

Because they are employed to perform – they offer a service for which they receive a fee; they are not organising the event.

To perform protected music in public, you first need to apply to SUISA for authorisation. Application forms can be obtained from SUISA. The forms should be filed with SUISA at least 10 days before the concert. To calculate the royalties properly, SUISA needs to have a detailed list of the works to be performed and your income and expenditures statement.

Royalties are charged on the basis of Common Tariff Ka/Kb if the public is coming deliberately for the music. An exception to that rule is the concerted or concert-like intermezzo lasting less than one hour (or less than one hour in total where there are several performances on the same day). If the intermezzo is part of a dance and recreational event, Common Tariff Hb applies.

The decision to apply CT Ka/Kb or CT Hb cannot depend solely on the popularity of the performer since public taste evolves much too quickly.  SUISA has to base its rates on other criteria such as ticket price, location, advertising and other expenditure items.

 

No. Royalties for concerts are calculated as a percentage of concert revenues or costs in connection with music use. The financial situation of each event is thus equitably taken into account.

SUISA normally calculates royalties based on income. Royalties are calculated on costs in certain exceptional cases (tariff Ka only) such as:

• charity events where the profit goes to the needy;
• if the revenues cannot be established;
• if, from the outset, the client expects to have to cover all or a portion of the costs from his own funds.

Under the Copyright Law, private events are birthdays, weddings and similar parties which take place in a close circle of family and friends. Events organised by clubs or associations do not qualify as private events and are therefore subject to royalties.

If SUISA has a programme list, it can distribute royalties to the authors of the listed works. Where SUISA does not demand programme lists in order to avoid excessive costs, royalties are distributed on a «lump sum» basis. That means that SUISA will take into account the so-called «basic repertoire», hit parades and broadcasts.

Yes. Royalties are due whenever music is performed in public – whether or not admission is free and the musicians are paid.  The only exception is for private events such as birthdays or weddings.

If you don’t charge admission, the royalty is lower. Common Tariff H specifies the applicable rates.

Basically, only birthdays and weddings qualify as private events («private circle») since SUISA assumes that only relatives and close friends are invited. We assume that there are only loose ties between the guests at other events.

For concerts and comparable performances in the catering industry, royalties are charged in accordance with CT K (Common Tariff K).

Background music only has an accompanying, supplementary or secondary function. Background music is mainly used in stores, restaurants, waiting rooms, offices, etc. or when phone calls are on hold.

Royalties are charged based on the surface area exposed to the broadcast or performance, i.e. the area on which the broadcast or performance is audible or visible. For music on hold, royalties are based on the number of lines on the exchange.

Billag collects background music royalties on behalf of the collective administration societies at the same time as it collects the broadcasting reception licence fees. SUISA acts as the collection agent for undertakings that only play sound carriers or sound and video carriers and do not need to pay commercial reception licence fees to Billag. Undertakings which receive broadcasts in addition to playing sound and sound and video carriers pay the relevant royalties to Billag.

Unless otherwise stipulated in the licence, SUISA basically waives the need for programme listings.

Yes. To record musical works that are still under copyright you must first obtain the author's consent. In Switzerland and Liechtenstein, the legal protection period runs for 70 years after the author's death.

Nearly all authors in Switzerland and abroad have entrusted SUISA with the administration of their rights in Switzerland and in Liechtenstein. So SUISA can grant a recording licence on the author’s behalf against payment of the corresponding royalty, which it passes on. You must notify SUISA before you produce any recording, or before you have any recording produced.

More information

• Bei der Vertonung (Synchronisation) sind der Produzent eines Tonbildträgers und sein Auftraggeber dafür verantwortlich, die Erlaubnis der SUISA einzuholen. Sie haften solidarisch für die Urheberrechtsentschädigungen.
  
  
• Bei der Vorführung muss der Veranstalter der Vorführung die Erlaubnis einholen. Das gilt insbesondere auch für Tonbildträger, die Schweizer oder Liechtensteiner Firmen von ausländischen Partnern und Mutter- oder Schwestergesellschaften zur Verfügung gestellt werden.

Tarif VN und Tarif VI