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4.2.4 Right to broadcast, right to retransmit and right to make a work publicly perceptible
Right to broadcast
Authors have the right to broadcast their work by radio, television or similar means, including by wire (Art. 10 para. 2 (d) CopA).
Authors’ right to broadcast their work only applies to public broadcasts, i.e. broadcasts that simultaneously address an unspecified number of people (cf. Hilty, Urheberrecht, 2011, 154). This is different from on-demand services, where users can decide individually when and where they wish to use a work (e.g. video on demand; calling up TV shows on the Internet at a later stage). In this case, the right to make a work available pursuant to Art. 10 para. 2 (c) CopA applies.
Right to retransmit
Authors have the right to retransmit works by means of technical equipment, the provider of which is not the original broadcasting organisation, in particular including by wire (e.g. transmission via cable or communal aerial installations, Hilty, Urheberrecht, 2011, 155) (Art.10 para. 2 (e) CopA).
Authors may not only decide whether their work may be broadcast; they can also determine who can retransmit this broadcast (Müller/Oertli-Pfortmüller, CopA, 2nd edition, 2012, Art. 10 N. 12).
The right of retransmission is unique in that authors have the right to decide on a retransmission but cannot exercise this right directly and on their own. This is where collective exploitation by collective rights management organisations comes into play. Pursuant to Art. 22 para. 1 CopA,the right of retransmission can only be asserted through a collective rights management organisation.
Right to make a work publicly perceptible
This right covers those cases where works that were broadcast or retransmitted have to be made available separately to the public once again. This includes in particular making on-demand services publicly perceptible (e.g. ‘streaming’ of a television programme at a restaurant). Public screening is another popular example. Public screening refers to a public event where a (television) programme protected by copyright is shown on a (giant) screen. Public screening is covered by the provisions of Art. 10 para. 2 (f) CopA on making a work publicly perceptible.
Authors cannot directly and individually assert their rights, but have to do so through a collective rights management organisation (Art. 22 para. 1 CopA). In the case of public screening events, the collective rights management organisation SUISA is responsible for exercising authors’ rights. ‘Joint Tariff 3c 2015 – 2018 Public screening of television programmes on giant screens’ sets out the conditions and remuneration for public screening.
No, this qualifies as making a radio or TV programme publicly perceptible pursuant to Art. 10 para. 2 (e) CopA. Pursuant to Art. 22 para. 1 CopA the restaurant or hotel owner has to contact a collective rights management organisation – for background music or television, this would be SUISA, while the permissibility of the broadcast and the compensation are governed by Joint Tariff 3a (please note: only valid until 31 December 2016).