The moral right of the author also includes the right to the work’s integrity. Authors have the exclusive right to decide
⇒ whether, when and how the work may be altered (Art. 11 para. 1 (a) CopA) and
⇒ whether, when and how the work may be used to create a derivative work or may be included in a collected work (Art. 11 para. 1 (b) CopA).
Authors may oppose any distortion of the work that is a violation of their personality (Art. 11 para. 2 CopA). However, it is permissible to use existing works for the creation of parodies. The Copyright Act makes special provision for such (Art. 11 para. 3 CopA).
Alterations to works:
Alterations (Art. 11 para. 1 (a) CopA) refer to changes made to a work that do not have creative value of any kind (e.g. depiction of a sculpture on a commemorative coin, cf. BGE (decision of the Swiss Federal Supreme Court ) 114 II 370). There are many possible variations of such alterations – big and small alterations, alterations that detract from – or even improve – the quality (e.g. changing a black-and-white photo to a colour photo), misuse, shortening or lengthening of a work, other interpretations, etc. An alteration in this sense affects the quality of the work. This does not apply to purely technical changes; for example, if a work is simply transferred to a different carrier or storage medium, cf. Müller/Oertli-Pfortmüller, CopA, 2nd edition, 2012 Art. 11 N. 4). Thus, the digitisation of an image, for example, does not qualify as an alteration.
Only the author may alter a work. Third parties may only alter a work if the author has given their consent. Authors and third parties do not always have to come to an explicit agreement in this regard – in some sectors, the author’s consent can be tacitly assumed: e.g. a magazine editor may shorten a reader’s letter. Employees in an employment relationship also sometimes have to accept certain alterations (described in detail under ‘Good to know: Copyright and employers’ authority to give directives‘).
Infringement of the right to decide whether, when and how the work may be altered:
A third party can alter a work so much that it is distorted. Authors may oppose any distortion of their work that infringes their personality (Art. 11 para. 2 CopA). This is a non-assignable right.
But when can a work be considered ‘distorted’? The alteration of the work must infringe the author’s personal rights (Art. 11 para. 2 CopA). Hence it depends on whether the alterations offend an author’s personal honour or damage their professional reputation, or whether such damage is imminent (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 11 N. 13). It especially needs to be asked whether the alteration of a work discredits, debases or disparages the author. The background to each individual case should also be considered – for example, an author who writes a political article and voluntarily participates in a public debate between participants who usually express their opinions in an aggressive and controversial manner must expect harsh criticism and cannot raise an objection based on ‘any hypersensitivity on the part of the author’. In this case, an objective benchmark must be applied (BGE 131 III 493). Criticism really only infringes the personality of an author when it is hateful, unnecessary or insulting (cf. Hilty, Urheberrecht, 2011, 173).
GOOD TO KNOW
If third parties have acquired the ownership (Art. 641 SCC) of a protected work (e.g. someone bought a painting by Artist X), they may have become the owner of the work, but they do not have “carte blanche” to do anything they want with the work. They are bound by certain principles of copyright law:
- The independence of ownership and copyright (Art. 16 para. 3 CopA). The right of ownership does not grant owners the right to make alterations to the work (Art. 16 para. 3 CopA) because the right to a work’s integrity belongs to the moral right of the author. Alterations to the work require the consent of the author. However, the Copyright Act makes special provision for building structures – ‘works of architecture that have been constructed may be altered by the owner’ (Art. 12 para. 3 CopA). As a result, an architect, for example, cannot invoke the infringement of the work’s integrity and his personal right when the roof of a building designed by him has to be renovated (BGE 117 II 466). However, authors can oppose any distortion of their work that infringes their personality.
- Author’s right of access (Art. 14 para. 1 CopA). Any person who owns (Art. 641 SCC) or is in possession of a copy of a work (Art. 919 et seq. SCC) must provide the author with access to it under certain conditions.
- Protection against destruction (Art. 15 para. 1 CopA): owners may not destroy original works of which no further copies exist without first offering to return them to the author.
No, straightforward digitisation is a simple technical conversion, not an alteration. However, this qualifies as reproduction pursuant to Art. 10 para. 2 (a) CopA, which may not be done without the consent of the author or the owner of the rights, except if one of the limiting provisions applies (e.g. digitisation for private use).
No, ownership does not change the fact that the artist remains the author of the work and has the exclusive right to make alterations to the work pursuant to Art. 11 para. 2 CopA. The situation would be different if the artist had expressly permitted me to make alterations.
Yes, for building structures, Art. 12 para. 3 CopA: Works of architecture that have been constructed may be altered by the owner. However, the authors can oppose any distortion of their work that infringes their personality.
Yes, if a work is changed to the extent that it contains new creative contents, it is considered to be an adaption in the sense that it is derivative work (Art. 3 para. 1 CopA). However, if the work is edited without any creative quality, this is considered to be an alteration.
No, the museum must offer to return the original work to the artist (Art. 15 para. 1 CopA). The museum may only dispose of the work after the artist has refused to take it back.