Creative Commons licences in Europe and Switzerland

Article 5(3) of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 (hereafter, the "EU Directive") provides that rightholders are entitled to grant licences for non-commercial uses of any rights, categories of rights or types of works and other subject-matter that they may choose.

Switzerland is not directly bound by European law. However, SUISA works closely with European collecting management organisations through over one hundred mutual representation agreements concluded with its foreign sister societies. Moreover, SUISA operates in Liechtenstein, which is a member of the European Economic Area.

Accordingly, SUISA has to comply with the Liechtenstein legislation on collecting societies and allow its members to grant non-commercial licences. It has chosen to do so by accepting that its members grant certain Creative Commons licences.

To qualify for a Creative Commons licence, a work must already have been registered by a declaration of works. Moreover, all the rightholders involved must be members of SUISA and must consent to the granting of the licence in question.

What licences can be attributed?
SUISA has decided to recognise three types of Creative Commons non-commercial licences for use by its members:

  • Name must be indicated – no commercial use allowed 3.0 Switzerland
  • Name must be indicated – no commercial use allowed – same licence required 3.0 Switzerland
  • Name must be indicated – no commercial use allowed – no derivatives (cahnges) allowed 3.0 Switzerland

For further information, see: http://www.creativecommons.ch/

The above three licences are irrevocable licences for free dissemination. This means that a work under any one of these licences will never generate royalties for its authors.

We would also point out that Creative Commons licences can only apply to uses for which SUISA's tariffs foresee an individual per-work fee, not a flat-rate or all-in fee. This means, for example, that  Creative Commons licences cannot be taken into account with regard to works used for background music or mood music (CT 3a), since the fees charged by SUISA for such uses are all-in fees based on the size of the area in which the music is played and not on the works actually played.


Definition of non-commercial use
Non-commercial uses are uses which are not intended to produce a direct or indirect commercial advantage or monetary compensation.

The following uses, for example, are non-commercial:

charity events (concerts or other musical events) with surplus revenue going to charitable causes, provided the organisers and musicians work for free;
production of sound and audiovisual recordings, provided the recordings are distributed for free and for self-promotional purposes.
 

Conversely, the packaging or use of a work or a copy of a work:

  • by a profit-making entity of any kind whatsoever;
  • in the framework of or in association with profit-making activities;
  • involving a counterpart, of a financial or other nature, regardless of the beneficiary, title or grounds;
  • in exchange for other goods, whether or not the exchange generates direct or indirect revenues or gives rise to a payment of any nature whatsoever;
  • by broadcasting companies (radio and television);
  • in establishments open to the public such as restaurants, bars, cafes, concert halls, department stores, retail shops;
  • at places of work
  • shall be deemed a commercial use. 
     

Applying a Creative Commons licence to a work
As stated above, to qualify for a Creative Commons licence, a work must already have been registered through a declaration of works.

SUISA must then be notified of the Creative Commons licence using the form “Placing a work under a Creative Commons licence”. The information indicated on this form must match that contained in the declaration of works. You must also indicate which of the three licences you intend to apply to the work in question. The form should be addressed to SUISA's Members Division (address).

You are required to provide true, accurate and complete information about the works covered by a Creative Commons licence, especially with regard to your authorship and any other rightholders involved. Users of your works who invoke the application of a Creative Commons licence must specify this to SUISA, or to the foreign collecting society, when declaring the use. Our staff will then verify that the use in question effectively qualifies as non-commercial.

Music copyright law in general

General principles of music copyright law

  • The Federal Law  of 9 October 1992 on Copyrights and Neighbouring Rights (the Copyright Law) is the legal reference basis for SUISA's activities. The Copyright Law regulates the rights of authors, performers, record producers and broadcasting companies in their works and services and stipulates the duties of the collective administration societies. The Copyright Law also defines fundamental terms such as “work” or  “author”, and specifies what rights an author has 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 consent. In exchange, the author is entitled to remuneration.

  • The Copyright Act protects all musical works of an original nature created by individuals. Apart from music, other acoustic works of an original nature, characterised by the use of sounds and not notes, are protected. All these works are protected regardless of their value or purpose. A symphony and a radio jingle enjoy equal protection under the Copyright Act. SUISA only manages what are known as “small rights”, i.e. the rights to non theatrical music. This includes:

    • non theatrical musical works, with or without lyrics, including oratorios;
    • concert versions of theatrical (dramatic) musical works;
    • dance musical works which can be used without dance;
    • excerpts from theatrical musical works which do not comprise a complete act and are not longer than 25 minutes in the case of a radio broadcast, or 15 minutes in the case of a television broadcast.
    • musical works in films or other audiovisual or multimedia works (except in the case of films of dramatic musical works).

    SUISA is responsible for performance, broadcasting and retransmission rights, public broadcasting rights, the right to make music available (online rights), mechanical rights (i.e. the production of sound and audiovisual recordings, including audiofiles) and blank carrier and rental rights.

  • The following reference books deal with copyright law:

    in German:

    Reto M. Hilty: Urheberrecht, Bern 2011 (ISBN 978-3-7272-8660-5).
    This reference book does not only deal with music copyrights, it provides a general systemic overview and discusses current trends in copyright law.

    Denis Barrelet, Willi Egloff: Das neue Urheberrecht, Kommentar zum Bundesgesetz über das Urheberrecht und die verwandten Schutzrechte, 3rd completely revised and supplemented edition, Bern 2008 (ISBN 978-3-7272-9563-8).
    This publication is an expert commentary on the Copyright Law. A separate section is devoted to each individual article of the Copyright Law.

    Barbara K. Müller, Reinhard Oertli: Urheberrechtsgesetz (URG), 2nd edition, Bern 2012 (ISBN 978-3-7272-2553-6).
    This 900-page commentary contains comprehensive explanations about Swiss Copyright Law with short references to the corresponding rules and regulations in German and European copyright law. A separate section is devoted to each article of the Copyright Law.

    Manfred Rehbinder, Adriano Vigano: URG Kommentar, 3rd completely revised edition, Zurich 2008 (ISBN 978-3-280-07143-4).
    In addition to a short commentary on the Federal Copyright Law, this publication contains many other national and international rules and regulations of relevance to copyright law (URV, RBÜ, TRIPS, WIPO Treaties, EU Directives, etc.). The annexes contain the Articles of Association and sample rights administration agreements of the Swiss collective administration societies.

    Roland von Büren, Lucas David (Hrsg.): Schweizerisches Immaterialgüter- und Wettbewerbsrecht, 1. Band, Teil 2, Urheberrecht (Volume 1, Part 2, Copyright Law) 2nd edition, Basel/Genf/Munich 2006 (ISBN 3-7190-2294-3), 3rd edition forthcoming (ISBN 978-3-7190-3178-7).
    700 pages of contributions from various authors provide comprehensive information about copyright law, publishing contracts and the legislation governing the copyright administration societies.

    Kamen Troller: Grundzüge des schweizerischen Immaterialgüterrechts, 2nd revised edition, Basel 2005 (ISBN 978-3-7190-2357-7).
    In addition to copyright law, this book deals with patent law, design copyrights, computer law, trademark law and unfair competition.

    Roland von Büren, Eugen Marbach, Patrik Ducrey: Immaterialgüter- und Wettbewerbsrecht, 3rd edition, Bern 2008 (ISBN 978-3-7272-0819-5).
    In 500 pages, this textbook presents a comprehensive overview of intellectual property and unfair competition law (patent law, copyright law, trademark and design law, anti-trsut and unfair competition law).
     

    in French:

    Jacques de Werra, Philippe Gilliéron (Ed.): Commentaire romand, Propriété intellectuelle, 1st edition, Basel 2013 (ISBN 978-3-7190-2853-4).
    This 2500 page volume contains a commentary of Switzerland's entire copyright, trademark, design and patent law.

    Dessemontet François: Le droit d'auteur, Lausanne 1999 (ISBN 2-8819-7038-9).
    In over 1000 pages including the annexes, this book provides a multitude of practical examples with special regard to the author's role in the field of new technologies - based on the 1999 status, however.

    Denis Barrelet, Willi Egloff: Le nouveau droit d'auteur, Commentaire de la loi fédérale sur le droit d'auteur et les droits voisins, 3rd edition, Berne 2008 (ISBN 978-3-7272-9564-5).
    This publication is an expert commentary. A separate section is devoted to each individual article of the Copyright Law.

    Kamen Troller: Précis du droit suisse des biens immatériels, 2nd edition, Bâle 2006 (ISBN 978-3-7190-2358-4).
    In addition to copyright law, this book deals with patent law, design copyrights, computer law, trademark law and unfair competition.

  • in German:

    2003 Poto Wegener: „musik & recht – Schweizer Handbuch für Musikschaffende“  (Music & the Law – The Swiss Handbook for Music Creators), unchanged 2nd edition, 2004  (ISBN 978-3-9809540-2-0).

    The book explores the following themes in 500 pages: copyright law, rights management law (SUISA and SWISSPERFORM), recording industry, sound recording agreements, publishing, sampling and remix, music and the Internet, contract law, intra-group agreements and organisation structures, concert contracts, management and booking, protection of group names, noise protection and social insurance. Although some sections are no longer entirely up to date, this book is a complete and competent guide with detailed explanations on a dozen sample contracts.

    Robert Lyng, Heinz Oliver, Michael von Rothkirch: Die neue Praxis im Musikbusiness, 12th edition, 2013 (ISBN 978-3-95512-059-7).

    A standard reference work for anyone who wants to know how the music industry works. The key players of the music industry are presented in 18 chapters. Precious practical tips for music professionals on everything from starting a band to hitting the top of the charts. The book covers copyright law basics as well as the art of negotiating contracts. Comprehensive annexes with commented contracts complete the book. Since the book is based on the German legal framework, not all information can be applied 1:1 to Switzerland.

    Rolf Moser, Andreas Scheuermann (Hrsg.): Handbuch der Musikwirtschaft, 7th edition, 2018 (ISBN 978-3-7808-0188-3).

    This 1500 page volume discusses all music production-related issues in great depth and detail - a more comprehensive presentation of the subject matter is hardly conceivable. Since the book is based on the German legal framework, not all information can be applied 1:1 to Switzerland.

    Donald S. Passman, Wolfram Herrmann: Alles, was Sie über das Musikbusiness wissen müssen, 2nd edition, 2011 (ISBN 978-3-7910-2987-0).

    An expert adaptation by Wolfram Herrmann of US lawyer Donald S. Passman's bestseller to the German, Austrian and Swiss music industry. The two insiders reveal their comprehensive expert knowledge in a sound and intelligible guide.

    in French:

    Guy Haumont, Eric Haumont: Le Droit des musiciens, Guide pratique, 2nd edition, 2002 (ISBN: 978-2911433160).

    A clear and complete overview of law and practice in the music industry with an international focus; no longer entirely up to date.

Declaration of Works

  • Under the Copyright Act, a work is automatically protected from the moment it is created, even if it is not registered. Nevertheless, it is advisable to document authorship as clearly as possible. This will enable you to establish your rights in case of dispute. The following steps can facilitate proof:

    • SUISA members declare their works to SUISA; 
    • SUISA members and non-members should send themselves a recording of the work or the score by mail. The letter or package should be registered; on no account should you open it.
    • Deposit copies of works with specialised institutions.
    • The digital deposit of audiofiles or PDFs on Cloud memories with bank-like standards (e.g. on Procloud: the date and time of uploading on this type of secured server can also serve as proof).

    These steps are not indispensable for the protection of your works but they will make it easier to establish proof of authorship in the event the author of a work and the date of creation are disputed. 

    File Declaration of Works

  • When a person takes someone else's work and releases it as his own (with or without changes), he is guilty of plagiarism. You cannot prevent the theft of intellectual property. But you can take steps to prove your authorship conclusively in the event of a dispute:

    • SUISA members declare their works to SUISA; 
    • SUISA members and non-members should send themselves a recording of the work or the score by mail. The letter or package should be registered; on no account should you open it.
    • Deposit copies of works with specialised institutions.
    • The digital deposit of audiofiles or PDFs on Cloud memories with bank-like standards (e.g. on Procloud: the date and time of uploading on this type of secured server can also serve as proof).
  • Complete information on the procedure for declaring your works is available under the following link. Please note that only members and associate members can file declarations of works with SUISA.

    Link: How to register a work 

    File: Declaration of Works

  • 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 which rely on music to such an extent that they cannot generally be performed or broadcast without it; examples of such works are musicals, operas, operettas and narrative ballets. All other musical works are non-theatrical musical works and SUISA manages the corresponding rights. Musical works contained in films or other audiovisual or multimedia works do not qualify as theatrical musical works except in the case of films of theatrical musical works.

    Other non-theatrical musical works are:

    • musical works for dance works which can be used without dance;
    • concert versions of theatrical musical works; and
    • excerpts from theatrical musical works which do not comprise a complete act and are not longer than 25 minutes in the case of a radio broadcast, or 15 minutes in the case of a television broadcast.

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

  • The rights administration agreement concluded between you, as the author, and SUISA covers all the works created by you without exception. “A la carte” representation is not possible. Accordingly, you have to declare all your works.

    You can, however, exclude certain groups of rights and certain countries from the rights administration agreement - these exclusions apply equally to all your works.

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

    Link: How to register a work

    Declaration of Works

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

  • For published works, in addition to the declaration of works form, SUISA needs to have the publishing or sub-publishing agreement.

    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 to music.

    If you declare the 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 regarded as traditional folklore.

    SUISA may require you to provide a sample copy in a given format with your declarations of works.

  • 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.

    In the case of published works, the publisher’s signature is sufficient provided the publishing agreement has been signed by all the participating parties. The consent of all the authors involved (including the authors of any arrangements) is evidenced in the publishing agreement which must be attached. If the publishing agreement is not signed by all the participating parties, the authors whose contributions are not published must also sign the declaration of works.

  • The "Distribution Key" section is generally filled in by SUISA in accordance with the current Distribution Rules unless participants have agreed to a different distribution key. In that case, the authors should fill in the agreed percentages, which must comply with the Distribution Rules

  • Yes. Information and access to online declaration of works: www.suisa.ch/de/mein-konto/

    The following works cannot be registered online and must continue to be declared using the printed form:

    • works created for the sound track of an audiovisual production
    • arrangements of free (i.e. not protected by copyright) original works
    • literary works (texts without music)

    Link: Declaration of Works 

  • In Switzerland, a musical work is protected by copyright up to 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 author who dies the last.

  • 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 a similar name is not already in use. 
     

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

    The declaration of works filed by an author and/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.

    NB: A sound recording declaration does not replace the individual declarations of works.

  • No. The standard repertoire is a list of the musical works that you perform regularly. SUISA needs these lists to distribute the remuneration paid by the organiser to the rightholders. Titles of your own composition must be filed separately with SUISA by means of a declaration of musical works.

    If you perform regularly as a musician and always play titles from the same repertoire, then you can ask SUISA for a standard repertoire card so that you do not have to fill in a programme form for each show.

    Further information