Copyright: when is my work protected?

1. The conditions

Art. 2 para. 1 of the Copyright and Neighboring Rights Act (CRA) provides three conditions for a work to be protected by copyright: it must be a creation of the mind, it must have an individual character and it must be a literary or artistic work.

A. The creation of the mind

For a work to be protected, it must first be the creation of the human mind. This condition can be divided into two sub-parts; on the one hand, the work must be the expression of the human mind. A human intervention must therefore necessarily intervene.  On the other hand, the work in question must be a creation. In other words, a human idea must be expressed.

Para. 2 of art. 2 of the LDA lists the works that are considered to be creations of the mind:

• Works using language, whether literary, scientific or other;
• Works with a scientific or technical content (e.g. treatise, dissertation, plan, map, drawing, etc.);
• Works of music and other acoustic works;
• Works of fine art, in particular, paintings, sculptures, graphic works;
• Works with a scientific or technical content, such as drawings, plans, maps or sculpted or modeled works;
• Works of architecture;
• Works of applied arts;
• Photographic works;
• Choreographic works and pantomimes.

In addition, ideas and concepts are not protected by copyright.

B. Individual character

The individual character of a work will depend on each particular case. This condition constitutes a particularly decisive criterion in the examination of the protection of a work.

Individuality can nevertheless be defined as a certain form of originality. In other words, in order to answer such a question, it is necessary to ask whether any person in the same circumstances would have created the same work. If the answer to this question is yes, then we are not dealing with a work of individual character.

It should be noted that copyright law no longer requires that photographs have an individual character for them to be protected as of April 1, 2020.

C. A literary or artistic work

This criterion is particularly broad. In fact, it will often not be a determining factor in practice.

2. The duration of the protection

Article 29, paragraph 1 of the LDA protects the work from the moment of its creation. Moreover, the protection expires 70 years after the death of the author.