Suisa (Swiss Society of Authors and Publishers) v. Redifusion AG, Bundesgericht (Swiss Federal Supreme Court), January 20, 1981 [1982] EEC 481, Federal Court Reporter BGE 107 II 57 (1981), excerpts reprinted and translated in Frederick M. Abbott, Thomas Cottier, Francis Gurry, International Intellectual Property in an Integrated World Economy 4th edition 627-630 (New York: Wolter Kluwer 2019).
Background
Swiss courts of law in principle adhere to the doctrine of monism. Cf. the cluster of this Anthology on International Law. International law is part of the law of the land, and is directly applied to the extent that a particular provision is sufficiently clear in conferring rights or obligations upon private parties. Courts of law thus may exclude direct effect when these conditions are not met. Practice thus largely depends upon the context of a particular case. Courts of law have been reluctant to grant direct effect in the field of international economic relations, in particular the General Agreement on Tariffs and Trade (GATT) and more recently WTO law as they seek to avoid conflicts with parliamentary legislation or regulations issued by the government. While this attitude has been regularly criticized in the literature, the argument being made that courts are perfectly able and suitable to apply and interpret the provisions of the TRIPS Agreement, it is remarkable that the Swiss Federal Supreme Court fully applied the provisions of the Berne Convention for the Protection of Literary and Artistic Works in a landmark ruling of January 20, 1981. Confronted with the legal implications of the then-novel technology of cable television transmission (largely outdated today and replaced by internet communication), the court fully referred to and relied upon the relevant provisions of the Convention in assessing whether providers of cable services are subject to copyright in addition to the copyright obligations incurred by broadcasting companies. Remarkably, the Court also discussed and referred to foreign rulings in a similar context. It fully engaged in applying international law and comparative legal analysis. The Federal Act on Copyright and Related Rights of 9 October 1992 (SR 231.1), Article 10 lit. e, did not change the provision as applied but rather introduced a fair use exemption in Article 22 for redistribution to flats of a single apartment building or complex, excepting pay TV and foreign programming otherwise not receivable in the country.
Beyond this case, regular recourse to international law has been rare in legal practice. Lower courts and lawyers often are not sufficiently versed in international law and judgments are rendered simply on the basis of domestic law, as was the case with the lower court in this particular litigation, which engaged in filling an alleged lacuna of the law. The landmark decision of 1981 is of great importance because the substantive provisions of the Berne Convention were incorporated into the TRIPS Agreement by Article 2. It thus also forms a foundation for granting direct effect to the provisions of the TRIPS Agreement. The same holds true for provisions building upon that agreement in bilateral free trade agreements such as that with China, discussed above in this Anthology in relation to the role of copyright in modern technology of the age of internet and digital retransmissions.
Summary
Art. 11bis (1)(ii) of the Berne Convention grants authors of literary and artistic works the exclusive right of authorizing “any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one.” With the advent of cable television, providing an alternative means of supplying programming to customers to direct aerial transmission, Rediffusion AG operated a cable network in the Zurich area that reached some 60,000 subscribers at that time. The company successfully argued before Zurich Cantonal Court that these subscribers could easily receive broadcasting by areal transmission. Thus no novel transmission takes place which would incur copyright protection. The first-instance ruling based exclusively upon the Swiss Copyright Act as it existed at that time, and the court engaged in filling a lacuna in addressing the configuration of dual transmission by both air and cable. The Supreme Court reversed the lower court ruling, examining the scope of Art. 11bis (1)(ii) of the Berne Convention and the travaux préparatoires. It examined court rulings on the then-novel issue by courts of law in Austria, the Netherlands and Germany, distinguishing dualist countries, and secondary materials on the issue prepared by the WIPO and UNESCO, in all of which the theory of dual use was rejected in light of difficulties in drawing appropriate distinctions.