Under Swiss law, the personality right is lost with the death of the person in question; as an exception to this, the moral right of the author is lost 70 years (50 years in the case of computer programs) after their death. How does this now apply to a photograph of a deceased person when this photograph is in the public domain due to the copyright expiring because the photographer has been dead for more than 70 years? As the photograph is in the public domain, it can principally be used freely. No consent is needed and as the moral right of the author is also lost after death of the author, the photograph can, if it is still unpublished, for example (Art. 9 Para 2 CopA), be published or altered (Art. 11 Para. 1 (a) CopA). However, this does not apply without restriction, as the law also recognises a certain degree of protection for the relatives of the deceased stemming from their respective personality right even if the personality right of both the photographer and the photographed person have expired. This has specifically to do with protecting the memory of the deceased. In this way, a relative of the deceased person depicted in the photo can be illegally infringed if the image of the deceased is defamed. In the context of the copyrights in such a photograph, the photograph may have entered the public domain but it cannot yet be freely used due to the memory protection of the relatives. This is because the relatives can, based on their own personality right, defend themselves, particularly if their memory of the deceased person is infringed by derogatory use of the work. (BGE 109 II 353, 359)
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2.6.4 Use of works in the public domain
Upon expiry of the term of copyright protection, works are released into the public domain, where they may be freely used. They may be copied completely, put online, exploited commercially, etc. According to prevailing opinion in the legal doctrine, the moral right of the author is also lost when the term of protection expires. In specific terms, this means that you may publish a third-party work if it is in the public domain, as long as the author has not published their work themselves. You may also publish a third-party work under your own name. However, good scientific practice sets very clear boundaries here. For example, anyone who submits a dissertation in the public domain under their own name is committing plagarism.
Furthermore, “copy fraud” is considered to be the illegal presumption of copyright, in which someone publishes a third-party work in the public domain under their own name, and in doing so suggests that the work is still protected by copyright or protected by copyright once more (i.e. puts a work in the public domain online with a Creative Commons licence, which forbids commercial use of the work). Although someone may principally publish a work that is in the public domain under their own name, a work whose copyright protection has expired on one occasion cannot be endowed with copyright protection once more in any circumstances, which means no limitation of any kind of use of the work in question is permitted.
GOOD TO KNOW
The copyright term of protection is only calculated on the basis of the date of death of the original author and not on that of the owner of rights to whom the copyright was transferred.
As it usually consists of several works (articles, images, etc.) which fulfil the conditions of a copyright-protected work based on the selection of the work contained therein or their special arrangement (Art. 2 Para. 1 in conjunction with Art. 4 Para. 1 CopA), a newspaper is an independently protected work (collective work Art. 4 CopA). The works contained in the newspaper are also protected irrespective of whether they in turn fulfil the requirements of Art. 2 Para. 1 CopA (Art. 4 Para. 1 CopA). Therefore, it is important to differentiate between the newspaper as a whole item and the articles and images contained therein when answering the question of the term of protection.
For the term of protection of the newspaper: The author of a collective work is mandatorily a natural person (original author Art. 6 CopA) who can certainly also transfer their rights to a publisher that usually has a legal personality. However, the term of protection of a work is principally calculated on the basis of the date of death of its original author (Art. 29 et seq. CopA). Therefore, the copyright protection of the newspaper expires 70 years after the death of the original editor. As the possible owner of rights of the newspaper, the publisher is certainly not left unprotected; it is protected by the Federal Act on Unfair Competition (UCA). Art. 5 UCA protects the newspaper publisher insofar as that the person who takes over or exploits the reproduction of a market-ready work results (= the newspaper) of another person without reasonable own expense acts unfairly and must reckon with sanctions (Art. 9 et seq. UCA).
For the protection of the individual article in the newspaper: In the case of individual articles in the newspaper, the term of protection is also measured on the basis of the date of death of the respective original author, – usually 70 years after their death (Art. 29 Para. 2 CopA) –, irrespective of whether they had transferred the rights in their work to the publisher, or not.
Caution is advised here. The author principally has the exclusive right to put the work online and must give their consent. However, a newspaper can be digitised and put online without the author’s consent if the copyrights in the newspaper have expired. This is the case if the original author, the editor of the newspaper, has been dead for more than 70 years. It does not matter from a copyright perspective whether the publisher as a legal person has been assigned the copyrights by the author or has become the author’s legal successor through inheritance. Even if the newspaper has not appeared for more than 50 years, you may not know whether the editor has been deceased for more than 70 years. Therefore, you should advise the library not to copy the newspaper and put it online.