In 2020, filmmakers in Switzerland will have an unwaivable and mandatory right to remuneration for the exploitation of their works by on-demand services, collectively managed.
This new legislation is the result of a decade long struggle by audiovisual authors’ collective management organisations (CMOs) in Switzerland to convince policymakers that audiovisual authors deserve a fair share in the success of their works online. I have been talking to Jürg Ruchti, CEO of the SSA to learn more.
SSA is a founding member of the SAA. It manages the rights of more than 3.000 Swiss authors for their audiovisual, dramatic and choreographic works since the mid-1980’s. SSA manages broadcasting rights and performing rights as well as reproduction rights assigned to it by its authors. SSA also administers a cultural fund, a solidarity fund to support members going through a difficult financial patch and a pension fund for its members.
A mandatory right to remuneration
On 27 September, the Swiss Parliament voted on the revision of the national copyright law that provides authors and performers with a mandatory right to remuneration for the exploitation of their works by on-demand services, collectively managed. The is a significant novelty for authors in Switzerland who have been struggling to value their making available right in their production contract.
Mr Ruchti is pleased with the new law but cautious with how it will be interpreted. The law will only apply in Switzerland and for Swiss works, plus foreign works whose country of production also applies a similar right. It does not apply to all work categories, excluding journalistic works for example, as well as film music authors and composers who already benefit from collectively managed royalties based on their exclusive right.
There are five CMOs in Switzerland which are regulated by the Swiss Institute for Intellectual Property, a source of confidence for the Parliament when adopting the new right to remuneration with mandatory collective management, explained Mr Ruchti. One CMO is designated as the one-stop-shop for the users and collects on behalf of all the others.
How it came about
It all started in 2010 when a Member of the Parliament raised the issue of “illegal” downloading. A governmental report later concluded that nothing had to be done, which made the creative sector upset. Their reaction led to a Minister taking the initiative to form a working group representing all stakeholders, including users, producers, consumers, artists and CMOs. SSA, SUISSIMAGE and SUISA worked as a team and actively contributed to the working group, as well as provided inputs to the public consultation. 10 years later, a new law is here. Piracy, which was the initial reason, remained an issue amongst other challenges for the copyright in the digital economy. The law eventually focused on modernisation in the digital era, including making on-demand services paying royalties to authors for the use of their works.
The keys to success
A key factor of this success was that audiovisual producers have since long accepted the collective management of authors' rights in Switzerland as a legitimate (if not the only) way to value the rights with users. It was also thanks to persistent explaining in the public debate of what authors’ rights are and a give-and-take approach in the legislative process. The CMOs explained over and over again how copyright works and why lump-sum payments are unfair to authors; when a work is successful, there is often a huge discrepancy between the production budget and what it generates afterwards. The final law was also a trade-off with some new copyright exceptions for data mining and archives, explained Mr Ruchti.
It was a difficult process to achieve the right to remuneration for video-on-demand platforms as there has been many rumours that copyright would kill the Internet. The new law is a great success in this context, but actually, it is simply the application of authors’ rights in the digital economy, concluded Mr Ruchti.
This change in law will secure filmmakers’ remuneration for the exploitation of their works in the future. Platforms which are offering video-on-demand services in Switzerland will now have to get a licence from the audiovisual authors’ CMOs. New operators have announced their launch within the next months. In other words, this is the right time, concluded Mr Ruchti.