International Constellations

18. What legal system applies to international constellations, such as with a foreign publisher or a subject-based repository abroad?

The author and the publisher can conclude an agreement on legal venue and applicable law within the limits set by the Swiss Federal Act on International Private Law (AIPL) and the Lugano Convention.

In the absence of such an agreement, it must first be determined whether there is a Swiss legal venue, which is the case for instance if an action is filed against an author whose place of residence is in Switzerland. The Swiss court then determines the applicable law according to the Swiss AIPL. A distinction is made between matters of contract law (which concern a publishing contract) and specifically copyright law questions (which concern copyright). Publishing contract law aspects are as a matter of principle subject to the law of the country in which the publisher has its place of business (Art. 117 Para. 2, AIPL). Copyright issues are subject to the country-of-protection principle, according to which the law of the country for which protection is requested applies (Art. 110 Para. 1, AIPL). If for instance an action is brought for the removal of a specific publication from a repository in Switzerland, Swiss law applies, while a German repository would be subject to German law.

19. A foreign publisher demands that an author with place of residence in Switzerland remove his works from a repository; which law applies here?

The legal venue and the applicable law can be agreed by contract, which is often the case in publishing contracts..

In the absence of such an agreement, the following applies in the case described above:

  • The legal venue is Switzerland (Art. 2 Para. 1, Lugano Convention; AIPL).
  • Actions based on the publishing contract are subject to the law of the country in which the publisher has its place of business (Art. 117 Para. 2, AIPL).
  • Actions based on copyright as such are subject to the country-of-protection principle (Art. 110 Para. 1, AIPL). Accordingly, if the removal of a specific publication from a repository in Switzerland is requested, Swiss law applies, while a German repository would be subject to German law.

20. A foreign publisher demands that a repository operator in Switzerland remove works from the repository; what law applies here?

The legal venue is in Switzerland (Art. 2 Para. 1, Lugano Convention; AIPL). As a rule, there is no contract between the repository operator and the publisher, with the result that the action will be based entirely on copyright issues. Accordingly the country-of-protection principle applies (Art. 110 Para. 1, AIPL) and hence Swiss law as a matter of principle. In such a case, for instance, internal use and the making of archive copies are permitted according to Swiss law (Art. 19 Para.1 c and Para. 3, Copyright Act; Art. 24 Para. 1bis, Copyright Act)..