In a decision dated October 17, 2000, in the matter of Pro Litteris vs. Town of Geneva (BGE 127 III 26), the Swiss Federal Supreme Court clarified the meaning of art. 26 of the Swiss Copyright Act. This article sets forth an exception to the copyright of visual artists and photographers by stating that works of art located in a publicly accessible collection may be reproduced in a catalogue edited by the institution responsible for the collection without any remuneration being owed to the artist. The same exception applies to the edition of fair and auction catalogues.
Pro Litteris, one of the officially recognized Swiss royalty collection companies, had concluded in 1995 with the Geneva Museum of Art and History ("the Museum") an agreement relating to the reproduction of artworks the commercialisation of which was handled and managed by Pro Litteris. In fall 1995, the Museum notified Pro Litteris of an exhibition planned to be organized and asked for permission to reproduce certain artworks in the accompanying catalogue, on postcards and merchandising articles. Pro Litteris granted to the Museum the right to reproduce the artworks and issued an invoice for royalties due for such reproduction. In spring 1996, the Museum notified Pro Litteris that it refused to settle the invoice to the extent as the reproduction of artworks in the catalogue was concerned. The Museum argued that no such remuneration was owed pursuant to art. 26 of the Copyright Act. Pro Litteris then sued the City of Geneva for payment of the respective amount. The Cantonal Court of Geneva dismissed the action and Pro Litteris appealed to the Swiss Federal Supreme Court.
The Swiss Federal Supreme Court compared article 26 of the revised Swiss Copyright Act with article 30 al.2 of the Swiss Copyright Act of 1922, which article had been replaced by the new article 26.
Whereas the old copyright act only provided for a free right of reproduction for those works of visual art which on a continuing basis remained in a public collection, the revised act does not mention in its article 26 the requirement "continuing basis" anymore.
The Federal Supreme Court determined that the omission of the requirement "continuing basis" in the revised Act was not a mere grammatical revision, but resulted from express deliberations of the Swiss parliament. Furthermore, the wording of the revised article 26 does not allow the conclusion or implication that the exception to the...