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21 October 2022
Organising a public screening in Switzerland during the FIFA World Cup 2022 in Qatar under certain conditions requires a licence and potentially also an authorisation under public law. Unless FIFA provides the feed itself, FIFA will lose out still today.
This is an updated version of the same author's article originally published ahead of the FIFA World Cup 2018.
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 Swiss 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 (Art. 38 in connection with Art. 22 para. 1 CopA). Therefore, the collective rights management organisation, the Swiss Cooperative Society for Authors and Publishers (SUISA), exploits the right to perceptualisation exclusively.
A separate SUISA licence for a public viewing in Switzerland is required under the following cumulative conditions:
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 2019-2023, depends on
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.
The fee due for receiving television programmes in Switzerland is governed by the current Common Tariff 3a (CT 3a) of the collective rights management organisations. If the organiser of a public viewing in Switzerland already under the CT 3a pays a fee to Serafe 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.
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 Swiss Federal Administrative Court.
By judgment of 21 February 2011 (B-2346/2009), the Swiss Federal Administrative Court rejected this view of things. UEFA later withdrew their complaint against this judgment. The court ruled that a public viewing was to be qualified under copyright law as "perceptualisation" of a programme within the meaning of art. 10 para. 2 letter f CopA and not as a "public performance" within the meaning of 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 Swiss 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 2022 in Qatar.
A licence by FIFA would only be needed if the organiser of a public viewing in Switzerland does not receive the feed (linearly) from a broadcasting company, but directly from the FIFA. According to FIFA's current licensing model (see here), however, the matches are broadcast in Switzerland via the Swiss public broadcaster SRG; the FIFA hence will not directly provide the organisers of public viewings with the feed.
Depending on where the public viewing shall take place, the organiser may also require an authorisation under public law from the responsible Swiss municipality/city.
Organisers of public viewings should avoid unfair ambush marketing, i.e. the creation of an unfair connection to FIFA resp. to the FIFA World Cup 2022, without having any marketing rights. Read here what game rules you should respect.
We recommend organisers of public viewings in Switzerland to familiarise themselves with the licensing situation and to obtain any necessary licence and authorisations in due time.
Author: Jonas D. Gassmann
Categories: Media and Entertainment, Sports Law
Attorney at Law
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