Copyright protection and generative artificial intelligence (AI): the Swiss approach

Generative AI systems are often trained with protected works. At the same time, they are used to produce content (images, text, music, videos...), so what are the implications for the copyrights of the creations provided to the system and those it creates? Nathalie Denel offers the Swiss perspective on copyright protection and AI. 

On 27 March 2025, Switzerland ratified the Council of Europe's Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law. Authorities will prepare the necessary legislative amendments and devise implementation measures by the end of 2026. While intellectual property (IP) law is not directly covered in this Convention, the possible regulatory approaches in IP are being examined. These approaches were addressed in the overview commissioned by the Federal Council and published on 12 February 2025.  

Regarding the legal framework for copyright, there are no plans to include AI regulations in the project of amendment of the Federal Act on Copyright and Related Rights (CopA) for the introduction of an ancillary right for media companies. Regulation might yet be considered. The overview sets out the existing legal framework and the grey areas that need to be clarified (baseline legal analysis, chapter 6.2), drawn up by the Swiss Federal Institute of Intellectual Property). 

Is the use of data copyright infringement? 

Training AI systems requires a large volume of data; for example, images that are downloaded automatically. This raises the question of whether the transmission of protected works as training data falls under copyright protection. 

Use falls within copyright where the work is reproduced, transmitted to a third party and made perceptible. Reproduction is often necessary for the enjoyment of the work, which is free use. 

To train an AI system, the work is copied into a database to enable its use. 

Does this transmission amount to reproduction? If yes, this use requires the permission of the copyright holder, unless a restriction applies. Swiss law does not provide a general clause that permits fair use and free speech, but an exhaustive list of the exceptions allowed, such as use for private purposes, temporary reproductions or the use of works for scientific research. The report recommends examining how AI development can be guaranteed by means of copyright-compatible training. Alternatively, possible measures should be considered to take the interests of the copyright holder into account. 

The training itself may also constitute a use, which will have to be determined too. 

Is there copyright infringement in the results? 

The protected work transmitted to an AI system may be recognisable in the result. The imitation of an author’s style is precisely what is sought after with some AI image-generation tools, such as the Studio Ghibli-style feature of the GPT-4o model, for example. AI model providers are implementing some measures to address copyright concerns. According to OpenAI’s content policies, mimicking the style of living artists is not allowed. Indeed, a request for an image “in the style of (living author’s name)” is blocked. But how about copyrights subsisting in a work after the death of the author and held by the heirs? And how do you differentiate the inspiration from the copy? 

In Switzerland, the term of copyright protection is 70 years after the death of the author (50 years for computer programs). For photographs without individual character, protection expires 50 years after their creation (Art. 29 et seq. CopA). 

Infringement implies that the features of the original work are reproduced. The analysis focuses on identifying the elements common to the original work and the copy and, assessing if these elements are protected – alone or in combination. The individual character of the original work must be recognisable. There is no infringement for the imitation of the style, i.e., the characteristics common to various works of an author. The assessment may require a balance of interests between the artistic freedom of the author of the derivative work and the property rights of the author of the original work, the right to artistic freedom being recognised as a supralegal limitation to copyright (ATF decision 85 II 120, Conan Doyle).  

There is no derivative work when the individual features of the initial work no longer exist due to the individual character of the new work, in which case no authorisation is required (ATF decision 125 III 322, Devanthéry). Photographic reproductions without individual character are authorised for the creation of a derivative work. 

Moral rights must also be considered, in particular the integrity right. This right is infringed where the alteration of the work could discredit, mock or harm the reputation of the author (ATF decision 131 III 493). 

How about copyright protection for the results? 

As for the authorship, an AI system cannot be regarded as an author. The author can only be a natural person (Art. 6 CopA). 

Works are literary and artistic intellectual creations with individual character, irrespective of their value or purpose (Art.2, para.1 CopA). 

The law applies technological neutrality. The techniques used for the creation are not considered. 

The first requirement is the intervention of human intelligence. The human must decide on the result and the work must be the expression of a thought (decision 130 III 168, Bob Marley). 

It is possible to use random creative processes (choice of tools, stopping or continuing the process, etc.). The result of an AI system is therefore a creation of the mind where the user influences elements of the result, despite a certain degree of randomness. If the result is generated autonomously, protection is excluded. For image-generating AI, the result could meet this condition if creative choices are made in selecting the data, drafting the prompts, programming, forming the text-image model and generating the output image. 

The second requirement is the individual character, which is twofold: 

• a statistical uniqueness (abovementioned decision), i.e., the creation must clearly differentiate from 1. existing works and 2. potential works that an author could create, which is assessed based on the likelihood that an author could create this creation. 
• the absence of ordinary character, for example, a work reflecting a choice which is surprising, unusual, and producing a surprise element (decision 4A_472/2021, 4A_482/2021, Feuerring). 

The individual character must be expressed in the work itself, not in the author’s personality. 

The degree of individual character depends on the author's leeway. A trained system could therefore hold sufficient individuality. 

The individual character is not required for photographs taken after 1 April 2020, the date on which the latest revision of the CopA came into force (Article 2-3bis CopA). This special rule does not apply to photorealistic visuals, since they are not photographic productions. 

If the result is inspired by existing works, and meets the above conditions, it can be qualified as a derivative work. It is protected by copyright on its own (Art. 3, para. 3 CopA).  

The reflection continues on the art and manner of ensuring legal certainty while exploiting the economic possibilities of AI, all this taking into account its very rapid (and prolific) development. An important topic to follow...

To find out more about copyright protection and AI, and to protect your creations with time stamping and blockchain anchoring, speak to your Novagraaf attorney or contact us below. 

Nathalie Denel is an IP Lawyer based at Novagraaf in Switzerland. 

The author thanks Stéphane Roux for his contributions on AI operation.