Museums’ Rights To Reproduce Copy-righted Artworks In Catalogues And Pow-ers Of Royalty Collection Companies

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26 of the revised Swiss Copyright Act with article 30 al.2 of the Swiss Copyright Act of 1922, which article had been replaced by the new article 26.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 artist’s copyright in art. 26 is limited to artworks which remain are on a continuing basis in a public collection.

For such reason, the court denied the arguments of Pro Litteris. Pro Litteris had argued, that art. 26 of the Copyright Act applied only to such artworks which were part of the permanent collection of a museum, but not to artworks which were loaned to a museum for temporary exhibitions.

Accordingly, Pro Litteris was not entitled to claim any royalties with respect to the reproduction of the artworks exhibited.

The interpretation and construction by the Swiss Federal Supreme Court of art. 26 of the Swiss Copyright Act confirms that Swiss museum institutions have a broad right to reproduce artworks in catalogues without the need for obtaining an approval for such reproduction and without the need for paying royalties. Still, the interpretation of article 26 is not yet fully clear with view to the meaning of what includes the word "catalogue". An new dispute between Pro Litteris and the museums seems to emerge on whether catalogues which rather have the character of merchandising goods than of illustration of an exhibition should fall within the meaning of this article or not.

Interestingly enough, the Swiss Federal Supreme Court pointed out in its decision, that the Copyright Act not only aims at the protection of the author, but the same wants to ensure that the diffusion of culture if not overly restricted by the Act. The Court further held that art. 26 of the Act was in compliance with art. 9 al. II of the Berne Convention, because this article grants to the member states the right to provide for certain exceptions to the copyright. The argument of Pro Litteris that other European states did not grant such a broad right for reproduction to museums was according to the Swiss Federal Supreme Court not of relevance for the interpretation of art. 26 of the Swiss Copyright Act.

The Court further clearly stated that the rules in question as set forth in the Copyright Act are mandatory law. As a result of this, the Royalty Collection Companies may not claim any royalties not covered by the Act, even if such royalties are provided for in an agreement concluded between a Royalty Collection Company and the one who wants to use a copyrighted work. The right of the Royalty Collection Companies to claim royalties is clearly and strictly limited to such royalties provided for by the act and concretesised in a tariff approved by public authorities. Any tariff or any agreement which goes beyond the terms and the meaning of the Act is illegal and void and does not grant any right to claim royalties.