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3.4.2 Publishing contract

The publishing contract is governed by the law of obligations (Art. 380 et seq. Swiss Code of Obligations (SCO)). According to these provisions, two contracting parties (author and publisher) mutually agree to a specific performance. The author of a literary or an artistic work agrees to give the work to a publisher for editing. In return, the publisher (e.g. a publishing house) agrees to reproduce the work and to distribute it, Art. 380 SCO. This is the core of the publishing contract – a publishing house must have the authority to reproduce and distribute the work. If a publishing house itself owns the copyright in a work, the publishing house also has the right to reproduce and distribute the work. However, if the authors own the rights in the work, in particular the rights of reproduction and distribution (Art. 10 para. 2 (a) CopA and Art. 10 para. 2 (b) CopA), the authors must somehow give these rights to the publishing houses. They can assign the rights to the publishing house or just allow the publishing house to use the work (grant licences). If the publishing contract does not contain any provisions on the assignment of copyrights or on the acquisition of the rights to use, the rights are assigned to the publisher in this respect and for as long as needed for the performance of the contract – according to the statutory rule of Art. 381 para. 1 SCO.

Obligation to desist vis-à-vis a publisher:

The law on publishing contracts makes provision for what is known as the obligation to desist vis-a-vis a publisher (Art. 382 para.1 SCO). Under this law, authors (originators) may not make other arrangements regarding the work or parts thereof to the publisher’s detriment. Thus, if authors have assigned certain rights to use to the publishing house, they may not exploit the possible uses without further ado. For example, they may not have their work published by a second publishing house, and they may not make it freely available on the Internet as long as the editions of the work to which the publisher is entitled have not yet been exhausted. In simpler terms, authors may not publish their work elsewhere – as they would then compete with the publishing house. This applies until all the editions of the work to which the publisher is entitled have been exhausted.

The law of obligations makes provision for exceptions to the obligation to desist vis-à-vis a publisher for newspaper articles and relatively short passages of magazine copy (Art. 382 para. 2 SCO). These works can be published elsewhere at any time. However, this is not a mandatory legal provision and other agreements are also possible. As publishing houses would like to retain exclusivity here too, they often include provisions in their publishing contracts to the effect that even newspaper articles and essays may not be published elsewhere. Finally, the law of obligations makes provision for a restricted obligation to desist vis-à-vis a publisher for contributions to collections or anthologies or relatively lengthy magazine articles (Art. 382 para. 3 SCO). In this case, an author may publish their work elsewhere at the earliest three months after the publication date. This is also not a mandatory legal provision and other contractual agreements can be made.

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