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Copyright law and the Internet: What is allowed?

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A quick screenshot here, an image or two downloaded there or the odd streaming video: the Internet is a mine of information and media content. But even the virtual world is not outside the law: Most content is subject to copyright. What is allowed? What is prohibited? And what are the potential legal consequences of copyright infringement?

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    Katrin Sprenger, CEO of Silenccio, and Julian Schenkel, lawyer at AXA-ARAG, answer the most important questions about copyright on the Internet.

Are all images legally protected in Switzerland? 

Since April 2020, the legal position in Switzerland has changed. Whereas previously only images of an individual nature were protected, for about a year now even snapshots taken with a cell phone have been covered by the new legal rules – and can therefore only be published with the appropriate usage rights.

What images can I use on my own website?

The general rule is that you can only use images on your own website if you hold the usage rights to them. In concrete terms, this means either pictures you have taken yourself or graphics you have created – or material for which you have acquired usage rights by purchasing image licenses. Of course, friends and acquaintances can also grant you usage rights free of charge.

What is the “right to your own image” all about?

The concept of the “right to your own image” applies both to taking pictures and to publishing them. It is for the people shown in the picture to decide whether the picture can be taken and whether it can be published. The right to your own image protects people’s privacy. It’s not a property right like copyright. People’s images can only be published without their consent if there’s an overriding private or public interest in their being published.  For example, there would be an overriding public interest in pictures of the audience at a concert or pictures of spectators at football matches. These often show hundreds of people and each individual is merely part of the crowd.

Can I put pictures of a garden party on my website – without getting my friends’ consent?

This is not a question of copyright. It’s simply a matter of the right to privacy. You already need your friends’ consent to take the pictures in the first place – assuming they can be recognized in the pictures. Publishing the pictures on your website is also only allowed if each friend recognizable on the photos has given his or her consent. They might have agreed to have their picture taken, but might not agree to having them published online.

Can I use so-called royalty-free images and videos without hesitation?

Unfortunately, this term is misleading. Royalty-free doesn’t mean you can use the images free of charge. It means the image material used is not subject to recurring royalty payments. You usually pay for the image once and can use it as many times as you like.

In addition, there are also what are known as “Creative Commons Zero (CC0) licenses” (in German). Photos with a CC0 license can be used free of charge. But you still need to look into the specific conditions required to comply with the terms of the license (e.g.  citation of the author, restrictions on editing, commercial use, etc.).

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I’m an amateur photographer. The other day I came across a landscape shot of mine in a neighborhood newspaper. Can I take legal action against the publication?

By printing the landscape photograph, the neighborhood newspaper has breached the copyright to your image. You can take legal action against this.

Can I use images that don’t have a copyright symbol or anything similar?

Just because there’s no copyright symbol on the photograph that doesn’t mean it can be used free of charge and without restriction. There’s no requirement to put a copyright symbol on a picture. Before using any photograph – regardless of whether it has a copyright symbol or not – you should always clarify the usage rights. However, even copyright-protected photos can be used for purely private purposes.

I’d like to sell a used designer handbag on ricardo. Can I use a photograph of the bag model taken from the manufacturer’s website?

No, that’s not permitted. You have to get the copyright holder’s permission first. One option is to take a picture of the bag yourself. This has the advantage that you automatically have the right to the image created and that the image will depict the true condition of the item.

I’ve used an image from the Internet for my online shop – and now I’ve been sent a warning. Do I have to pay or will removing the image be sufficient?

If you have actually used the image without permission, you have committed a breach of copyright. However, there is no hard and fast rule about whether you have to pay, and if so, how much. It will often be possible to negotiate over the amount. However, caution is called for: If the copyright holder takes legal action, you can expect to incur additional costs (lawyer’s fees and court costs) which could well exceed the original claim. If you used the photograph intentionally you could also be liable to criminal prosecution. Paying up is often the best way to cut your losses.

You also need to be careful if the warning comes from abroad. In this case, legal advice should be sought immediately in the country in question.

To avoid falling foul of the judicial system in the first place, when searching for images it’s worth looking out for Creative Commons (in German) licenses. This organization promotes free exchanges of creative works. Authors use various licenses to specify the conditions under which their works (e.g. a photograph) can be used.

In Switzerland images are protected by copyright. With every image, you need to know what purposes it can be used for on the Internet.

Katrin Sprenger, CEO of Silenccio

The following use of images is safely within the law:

  • Images and videos you have created or photographed yourself
  • Images that are not (or no longer) protected by copyright either because the creator has been dead for 70 years or longer or because he or she has voluntarily waived copyright protection.
  • You are using free or chargeable images belonging to image agencies or from databases – whether free or subject to a charge – and you know the license conditions.

I’m a primary school teacher. Can I put a video of our Christmas carol singing on the school website – or do I have to ask all the parents for permission? You can hardly recognize the children.

Here, too, the “right to your own image” applies. If even just one of the children is clearly recognizable, the parents’ consent will be required. However, if the video really has been made in such a way that the children can be recognized as a choir, for example – i.e. as a group in which no individual is identifiable – then it can be published.

In addition, the copyright to the songs will also need to be clarified. In the case of classic folk songs, these proprietary rights will often already have expired. In the case of contemporary songs, the artists’ consent or licenses will also be required for publication.

Our tip: Institutions such as schools or clubs such as the Scouts or Guides should handle this issue with the utmost sensitivity: best to seek the consent of all concerned once too often and send videos and photos directly to the parents rather than publishing them.

Can I avoid a warning by putting a disclaimer on the website?

No, you can’t. A disclaimer is not binding on a third party – in this case the photographer or copyright holder. However, depending on how you use the website, you can restrict access to the content to certain people. For example, if only your family has access to the website, the use of the photos falls under private use and is permissible.

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When are images no longer protected by copyright?

A picture doesn’t lose copyright protection until 70 years after the death of the author. So if a picture was taken in 1930 and the photographer died in 1950, the copyright expires not in 2001, as is often mistakenly assumed, but only in 2020. In the case of photographs that are not individual in nature, copyright protection lasts for 50 years from the date of creation. In other words, a snapshot of the Eiffel Tower taken on a cell phone in 2020 will cease to be copyright-protected from 2070.

Can I use an image I’ve edited extensively with Photoshop for my website?

Copyright also applies after an image has been edited – as long as the original can still be recognized. To put an edited image online without having to worry, you have to make sure that the original is not even remotely recognizable when directly compared, or you need to have a right of use with consent to the modifications made to the original.

I’ve received a warning letter from a German law firm. Is foreign law also applicable to copyright on the Internet?

Yes. The mere fact that a Swiss website can be accessed in Germany is sufficient for litigation to be brought before a German court. We advise you to get help from a German lawyer immediately.

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