24. What is a copyright work?

Works are creations of the intellect independent of their embodiment in a copy of a work (Art. 2 Para. 1, Copyright Act). Thus it is not an article in a specific graphic form that is protected, but rather only the article “of itself”. Academic publications are as a rule protected by copyright unless they are a mere compilation of data (Art. 2 Para. 2 a and d of the Copyright Act). In practice, however, the publishing contract can define different exploitation rights, such as for the accepted manuscript (author’s version) or the publisher’s pdf (publisher’s version). These are contractual agreements that are permissible as a matter of principle, and as general they take priority over the statutory provisions (Art. 380 et seq., Code of Obligations, Art. 16, Copyright Act).

25. Who is the originator of a work?

The creation principle applies; copyright arises in the person of the originator of the work (Art. 6, Copyright Act). Only physical persons can be the originator; however, legal persons can be granted the copyright by the originator. A plurality of persons can be entitled to the copyright if they have all made a creative contribution to the work. Evaluators, reviewers, the person responsible for the layout and assistants who merely carry out auxiliary and basic work are not co- originators. In practice, all the authors of an academic work are its originators (Art. 8 Para. 1, Copyright Act).

26. Is it always permissible to set a hyperlink to other websites?

A link can always be set to a website whose contents are lawful. A hyperlink to a website whose contents are in breach of copyright can constitute a contribution to the breach of the rights. Authors’ personal websites sometimes contain a full text without authorisation, and so a repository should not contain a link to it.