Public Viewing in Switzerland: Do I Need a Licence?
Anyone organising a public viewing in Switzerland during the World Cup in Russia requires a separate licence under certain conditions. FIFA will lose out.
SUISA licence While it is controversial whether the live broadcast of a sports event even constitutes a copyright protected work, the broadcasting companies have, in any case, a so-called related property right to the broadcast itself in accordance with art. 37 of the Federal Act on Copyright and Related Rights (CopA).
Amongst others, broadcasting companies have the exclusive right to "make their programmes perceptible" (art. 37 letter b CopA). Anyone who enables third parties to follow World Cup matches live on a large screen or projection surface interferes with this right. The perceptualisation of a programme is subject to so-called collective rights management. Therefore, the collective rights management organisation, the Swiss Cooperative Society for Authors and Publishers (SUISA), exploits the right to perceptualisation exclusively.
Screen size is decisive A separate SUISA licence for a public viewing in Switzerland is required under the following cumulative conditions:
the programme is made perceptible to third parties outside a (narrowly interpreted) private circle, e.g. in a bar, in a restaurant or in a clubhouse and
the screen size (measured diagonally) is at least three metres.
Scaled licence fee The amount of the licence fee payable to SUISA, according to the Common Tariff 3c (CT 3c) of the collective rights management organisations for the years 2015-2018, depends on
the screen size (measured diagonally);
the number of days on which the public viewing occurs; and
whether entry to the event is free of charge or whether there is an entry fee or an equivalent cash consideration (e.g. surcharge on drink prices).
The licence fee is a daily flat rate between CHF 62.40 (without entry fee and up to 5m screen size) and CHF 499.20 (with entry fee and from 12m screen size), all plus VAT.
If the public viewing takes place simultaneously on several large screens or projection surfaces, the organiser only has to pay the licence fee applicable to the largest screen or projection surface.
Billag-fee The fee due for receiving television programmes is currently governed by Common Tariff 3a (CT 3a) of the collective rights management organisations for the years 2008-2018. If the organiser of a public viewing in Switzerland already under the CT 3a pays a fee to Billag AG, the fee collection company, SUISA calculates this into the public viewing licence fee.
If the screen size (measured diagonally) is less than 3 meters, the organiser will only owe a fee according to CT 3a.
No FIFA licence is required For the 2008 European Football Championship in Switzerland and Austria, the tournament organiser, the Union des Associations Européennes de Football (UEFA), and the Swiss Broadcasting Corporation (SRG) claimed that they were the owners of the respective broadcasting rights (esp. the right to broadcast football games) and that a public viewing in Switzerland would therefore require the payment of a licence fee to UEFA / SRG. Accordingly, they challenged the CT 3c for the years 2008-2010 at the Federal Administrative Court.
By judgment of 21 February 2011 (B-2346/2009), the Federal Administrative Court rejected this view of things. UEFA later withdrew their complaint against this judgment. The Federal Administrative Court ruled that a public viewing was to be qualified under copyright law as "perceptualisation" of a programme (art. 10 para. 2 letter f CopA) and not as a "public performance" (art. 10 para. 2 letter c CopA). Because the perceptualisation – unlike public performance – is subject to collective rights management, the licensing is the responsibility of the competent collective rights management organisations. Third parties such as UEFA or SRG are therefore not entitled to grant licences for a public viewing in Switzerland.
By judgment of 29 May 2012 (B-2099/2011), the Federal Administrative Court confirmed that judgment concerning CT 3c for the years 2011-2014.
Although it was UEFA that challenged the CT 3c, the outcome is to date also relevant for the Fédération Internationale de Football Association (FIFA), the organiser of the World Cup. Therefore, in Switzerland, no licence from FIFA is required for a public viewing of the World Cup in Russia.
We recommend organisers of public viewings in Switzerland to familiarise themselves with the licensing situation and to obtain any required licence in due time.
If you have any questions about public viewing, our sports law team will be glad to assist you.