The collective management organisations had made a constructive proposal for the National Library Act that was rejected by the Federal Council and Parliament. The solution would have made the legislative revision considerably simpler. The Act has now been adopted and the ordinance is under consultation. It contains important safeguards. Several points still need to be clarified from the perspective of rights holders. Because ProLitteris was asked about the legislative change several times at the General Assembly, we examine it here in detail.
The proposal by the collective management organisations was designed to use the existing legal framework. First, the collective management organisations would have coordinated and administered contracts with publishers and creators: technical changes and the library’s needs could then have been updated continuously. Second, an extended collective licence would have regulated copyright: Parliament had introduced this instrument of the Copyright Act only a few years earlier for mass uses. Third, the professional and trade associations together with the collective management organisations would have established a permanent round table. The National Library, the collective management organisations and the affected cultural and media sectors would have jointly developed the collecting mandate, technical developments and copyright issues there. New forms of publication, new uses or new technical possibilities could have been incorporated as they arose. The National Library would have gained not only legal certainty but a permanent circle of institutional partners. The legislative change could have remained simple and small: the new provisions would not have been needed. – Parliament decided otherwise. The Act created a broad special regime outside copyright licensing. The draft ordinance now regulates protection periods, access and technical safeguards; their concrete implementation remains under discussion.
Digitalisation changes the business of every library. E-books, online media and music files cannot be acquired, deposited and offered in a reading room on the same model as traditional books, sound recordings and audiovisual media. Digital processes create copies, and access works independently of place and time.
The legislature has the power to change existing rules at any time. Driven by the National Library itself, an important institution within the Federal Office of Culture with all the corresponding political possibilities, the new National Library Act was recently created.
No one can object to the objective: the Swiss National Library should preserve Switzerland’s digital cultural memory. A collecting mandate that also covers digital material is logical and necessary. The Swiss cultural heritage sustainably managed in one place in this way is known as Helvetica.
Another point capable of commanding consensus: copyright, too, must accommodate the objective of a digital legal deposit. Solutions are therefore required for the legal situation in which copies are created in the digital environment and works are made available online: reproductions and Internet publications instead of reading rooms and lending.
Together with the other Swiss collective management organisations and the cultural associations, ProLitteris had put forward a concrete solution in the consultation on the National Library Act. It was based on the intellectual-property system generally and, in particular, on the extended collective licence as an instrument of the Copyright Act. Parliament had introduced that instrument only a few years earlier to enable legally secure licensing of mass uses where individual rights clearance is unreasonable; it is particularly well suited to memory institutions.
The concrete solution proposed by the collective management organisations:
- A legally secure licence from the Swiss collective management organisations, with moderate remuneration payable by the National Library as an annual lump sum.
- The statutory deposit obligation ensures that Helvetica are collected comprehensively; copyright use is regulated separately.
- Existing contracts with industry organisations are professionally renewed, extended to digital content and managed transparently.
- A round table optimises the technical and organisational delivery of deposit copies, both analogue and digital.
- Copyright remuneration is paid as a lump sum to the collective management organisations; the rates can be periodically adjusted to the holdings and uses.
The concept was based on the premise that copyright law already contains everything necessary and that the National Library Act needs only targeted additions to enable the role and obligations of a central Swiss cultural institution.
To the regret of the professional and trade associations and the collective management organisations, events took a different course. In the political decision, copyright appeared primarily as an obstacle. The National Library does not license or remunerate copyright – that was the principle. Because the subject was delicate from a copyright perspective, the bill was debated intensively in the committees and chambers; minority motions were submitted and a compromise was reached.
ChatGPT was launched at the end of 2022, with image generators such as Midjourney appearing shortly before and after it. The unauthorised use of large quantities of protected texts, images, artworks and music – more precisely, of everything available on the Internet or elsewhere – became a copyright conflict. In numerous countries, proposals to strengthen copyright emerged, and courts are dealing with claims against providers of AI models.
Creators then had an additional concern. Where a library permanently stores protected digital content on its own systems and makes it accessible by telecommunications, technical measures must prevent bots, scrapers or data suppliers from gaining mass access. User registration alone is not enough. Content from cultural memory must not flow into a new raw-material channel for AI models.
Digital policy must also answer why a special state right should extend further than the rules with which private platforms and AI providers are required to comply.
At this point the collective management organisations spoke of a statutory special privilege. Privileges for libraries can be sensible, and the Copyright Act provides solutions for them. But it is remarkable when another statute rather than the Copyright Act – namely the National Library’s own statute – creates a special rule for a single institution.
From the perspective of the collective management organisations, the elaborate legislative change was unnecessary. The legal implementation of digital legal deposit could have taken place within the existing copyright system. Rights costs would have been moderate, periodically negotiated and subject to legal supervision – as they always are when collective management organisations operate. The implementation arrangements would also have benefited the National Library, because statutes and ordinances can never be as dynamic as contracts and industry standards.
The National Library example shows that the legislature can change rules at any time. That is precisely why a coherent system matters. Good legislation builds on existing solutions, maintains established instruments and ensures that individual statutes do not unintentionally intrude into other areas of law.
In this case, we collective management organisations did not succeed in establishing a more flexible, fairer and more consistent solution. Parliament heard the proposal with interest, but it was eclipsed by the clear principles and plans of the National Library.
That outcome has to be accepted. The ordinance implementing the Act is now on the table. The consultation runs until 12 October 2026, and the collective management organisations and cultural associations will submit their views.
For content that is not freely accessible, the draft ordinance provides protection periods of 1, 2 or 5 years, user identification, a ban on multiple access, and technical copy and download protection. Periodic risk analyses and security tests are also envisaged. These are sensible safeguards. The proposed annual contribution of CHF 20,000 for cultural creators is a contribution, but not copyright remuneration.
For implementation, the collective management organisations will put forward the following requirements.
- Paywalls, paid offerings and publishing business models must remain effectively protected. Protection periods and access restrictions must be capable of adapting to the business model concerned.
- The collecting mandate must be limited: it must be clear which digital content is collected comprehensively, which only selectively and which not at all.
- Existing infrastructure should be used wherever possible for technical implementation, in the media sector notably SMD/Swissdox, rather than building parallel delivery and access systems.
- The affected media and publishing associations must be involved on a binding basis when downstream technical implementation rules, standards and interfaces are established or changed.
- Access must be effectively protected against automated access, scraping, mass data extraction and AI uses. The protection must also cover automated circumvention and systematic retrieval.
Together with the other collective management organisations and the cultural associations, we are working to ensure that these points are reflected in the ordinance and the downstream technical rules. Contracts and existing industry infrastructure remain useful even after the new Act because they can absorb technical developments faster than an ordinance.
The objective remains unchanged: preserve digital Helvetica without turning the National Library into a free substitute channel for publishers’ offerings or a machine data-access point. Cultural memory and functioning creative markets belong together.
Kirchmann’s famous sentence has lost none of its relevance. Laws can be changed. They can also be developed further and coordinated better. Especially in digitalisation, it is therefore worth using the keys already available before creating new privileges. Together with the other collective management organisations under the «Swisscopyright» umbrella, ProLitteris works for a coherent copyright policy.