Federal supervision of collecting societies aims to prevent them from abusing their power. It applies to remuneration rights in cases involving legal licences since these can only be exercised by the collecting societies (Art.13 para. 3, Art. 20 para. 4, Art. 24 para. 4 and Art. 35 para. 3 of the CopA), which gives them a monopoly. The situation is the same when exclusive rights are subject to obligatory collective rights management (Art. 22, 22 (a-c) and 24 (b) CopA). For non-theatrical musical works, even if they are not obliged to do so, the rights holders choose to entrust their rights to perform, broadcast and produce phonograms and videograms to SUISA for practical reasons. In fact, this means SUISA has a monopoly, which is a justified reason for the Swiss Confederation to supervise its activities. However, there is no reason for the state to intervene when collecting societies carry out an activity that is subject to market and cartel laws. This is the case for the management of rights to music online in particular, where several foreign organisations operate even in Switzerland. This serves to prevent the risk of an abuse of power.
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5.10.4 Activities not subject to surveillance
As part of the preparatory work for the current law at the end of the 1980s, the question arose as to whether to extend the Swiss Confederation’s supervision to include all collective management of rights regardless of what the rights pertain to. This is already the case in Germany and Austria, for example. The legislator rejected the idea so as not to “unnecessarily homogenise the various forms and frameworks for exercising rights indirectly”. The Swiss Federal Council explained that there are some areas, for example, in which societies may only act as intermediaries between authors and users without asserting their own rights. It therefore considered that extending the scope of supervision to these areas would have amounted to interfering with the agreements that the authors themselves had negotiated with the users (Federal Gazette 1989 III 538). Therefore, the private nature of copyright prevailed in the end. The idea of extending the scope of federal supervision to all areas of rights management was suggested again as part of the preliminary CopA revision project in 2015 (Art. 41, cf. https://www.ipi.ch/fr/droit-dauteur/modernisation-du-droit-dauteur-2015.html?type=oskqislpz). The suggestion was abandoned again by the Federal Assembly’s 2017 project (https://www.ejpd.admin.ch/ejpd/en/home/aktuell/news/2017/2017-11-221.html).
Collecting society activities which are not subject to state supervision
|ProLitteris||For example, ProLitteris manages the right of reproduction for visual art and photography (Art. 10 para. 2 (a) CopA) without being supervised. Similarly, it exercises its broadcasting rights freely (Art. 10 para. 2 (d) CopA) as well as its right to make texts, works of visual art and photography available on demand (Art. 10 para. 2 (c) in fine CopA). ProLitteris uses the portal onlineart.info to assert its own members’ rights to make works available and also, based on agreements with partner collecting societies, to assert the rights of foreign rights holders. This amounts to around 60,000 authors of representational art.|
|SSA||Broadcasting rights and the right to make work available and reproduce work are also managed freely by the SSA on behalf of the authors of audiovisual works and works for stage production. The SSA also manages performance rights in Switzerland and abroad without being supervised by the Swiss Confederation.|
|Suisseimage||In a similar way, Suissimage exercises the right to broadcast audiovisual works on television and the right to reproduce copies of these works in “offline” multimedia products (in French only: http://www.suissimage.ch/fileadmin/content/pdf/3_Nutzer_Tarife/offlinef.pdf).|
|SUISA||SUISA, for example, deals with everything to do with making non-theatrical musical works available online without being supervised by the state (the right to make work available is not mentioned in Art. 40 para. 1 (a) CopA). SUISA therefore manages around half of the world’s repertoire of music in Switzerland, which is distributed on demand over the Internet. Under the “Mint” project, SUISA has worked together with SESAC, a US collecting society, to create various societies to manage music rights online across several territories at the same time (https://www.suisa.ch/en/suisa/mint/mint-digital-services.html).|
These collecting society activities are not supervised and are solely based on relationships governed by private law, i.e. rights holders (or foreign collecting societies) who directly mandate Swiss collecting societies to manage rights. We must not forget that these societies are organisations created by rights holders to defend their own rights. An author, for example, will often have an interest in their rights being managed by a society which is mandated to defend them and where they will exercise their right to vote as opposed to by a user who has acquired the rights to defend its own economic interests.
GOOD TO KNOW
The SSA offers individual, centralised management, i.e. an area in which the SSA acts as an intermediary between authors and users. There are many rights holders who do this themselves without going through the SSA. This means the SSA does not have a monopoly and state intervention is therefore not justified.