On the 1st of April, 2020, a new copyright law was enacted in Switzerland. Amongst other revision points, it declares an extension of the protection of photographs by applying the notion of work to non-individual photographs, provides for a new copyright exception for the use of copyrighted works for purposes of scientific research, and introduces extended collective licenses as a new instrument for collective copyright regulation. As the Plazi workflow is organised and ruled by Swiss copyright law, Plazi had to adapt to these legal amendments.
The new exception to copyright for the use of works for scientific research purposes refers to any work, to which the researcher has a lawful access, and allows free copying and reuse for commercial or non-commercial scientific research. The exception is compulsory and overrules eventual licence agreements. The extension of the copyright protection for photographs widens the notion of “work” for this genre. Up to now, photographs qualified for copyright protection only if they proved a certain degree of individuality and originality. This criteria will not be applied to photographs any more. As a consequence, every photographer can now claim copyright protection also for his or her most standardised or trivial products.
Whilst the first amendment alleviates the Plazi workflow, the extension of the protection for photographs could hamper these procedures as Plazi extracts this kind of photographs from biodiversity literature in order to make them findable and accessible. Therefore, Plazi had to make sure that the extraction of scientific data and images as it has been practised lawfully for more than 10 years, will fit also into this new legal framework of Swiss copyright law. In order to do so, we convened an extended collective license with ProLitteris, the Swiss collecting society dealing with rights in photographic works. By this agreement, ProLitteris authorises Plazi to re-use all published photos and other images for the purpose of indexing and making available the worldwide biodiversity literature in the context of BLR.
An extended collective license is an agreement between a collecting society representing a substantial number of right owners in a specific category of works and a specific user of such works that applies to members of this collecting society as well as to non-members. This legal instrument existed for decades in some European countries and must now be implemented into copyright law of all other EU countries as a follow-up of the Copyright Directive 2019/790/EU. In Switzerland, extended collective licenses have been introduced together with the copyright exception for the use of works for scientific research purposes and with the aforementioned extension of the protection of photographs.
Thanks to this agreement, Plazi can assure that, also in the next future, all the data and images extracted from biodiversity literature are available in the Plazi TreatmentBank and in the Biodiversity Literature Repository for free. The re-use of these data by third persons is ruled by the copyright regulation applicable to the re-user. In most cases, there is no copyright protection at all as data and standardised images are not copyrightable (see Egloff et al.). It might be different in countries with a special protection regime for non-individual photographs, as it has been introduced in Switzerland and as it exists in a few other European countries like Denmark, Germany, Italy, and Austria for example.