Diversity of Content

Commentary on the single distributor clause (Art. 19 para. 2 of the Film Act)

Anyone wishing to show or offer a film publicly in Switzerland for commercial purposes must first acquire the exploitation rights to the film.

The “single distributor clause” (Art. 19 para. 2 FiA) governs the sale and acquisition of these rights. It states that:

A company may distribute a title for its first public release in the cinema or for other uses of the work only if it holds the rights for the whole of Switzerland to all language versions that are exploited in Switzerland.

Under the clause, the rights can only be granted for the entire territory of Switzerland, and must be acquired for all language versions that are exploited. The legislation aims in particular to improve the availability of films in all linguistic regions of Switzerland.

In general, exploitation rights are divided into the following main categories:

  1. cinema (theatrical) rights;
  2. videogram rights (DVD, Blu-ray, video, etc.);
  3. digital ─ “non-linear” ─ exploitation rights (video on demand in all its various forms; the rights are further subdivided into TVOD and SVOD, etc.);
  4. TV rights (in practice, this includes 7-day catch-up).
However, the single distributor clause does not affect all of these categories equally.

What companies are affected?

Companies in Switzerland and abroad purchasing the rights to films intended for exploitation in Switzerland.

Examples: Swiss distributors that exploit films in Swiss cinemas; VOD platforms such as Netflix that offer films to Swiss audiences; providers of catch-up TV extending beyond a 7-day period (see below). The clause also applies to videograms (DVD/Blu-ray, etc.).

The clause does not apply to broadcasting organisations and their programme services under the Federal Act of 24 March 2006 on Radio and Television (Art. 2 (a) RTVA). In practice, 7-day catch-up of films broadcast on television is categorised as linear TV exploitation.

What films are affected?

Cinema films during their first release in Swiss cinemas as well as all films that are exploited digitally, via videograms or via catch-up TV more than seven days after broadcast for commercial purposes in Switzerland.

Cinema films after their first release (reprises) and films broadcast on linear television (including 7-day catch-up) are not affected.

What constitutes first release in the cinema?

In practice, first release in the cinema means the first public exploitation of a film involving more than 20 cinema screenings within a year after the first screening. The duration of the first release period is limited by the duration of the licence agreement between the rights holder and the cinema distributor.

Do the rights for film exploitation in Switzerland have to be acquired exclusively?

For first release in the cinema: yes. For other forms of film exploitation: no.

Art. 29 FiA makes it a criminal offence to wilfully distribute for first showing a title to which a registered company has already acquired the rights for the same exhibition sector. For this reason, the rights for first release in the cinema may only be acquired exclusively (and only by a registered Swiss film distributor).

Do all language versions of the film have to be acquired?

No. The rights to all language versions that are actually exploited in Switzerland must be acquired. However, the language versions that are actually exploited must always be acquired for the entire territory of Switzerland.

Example: A Japanese film is only available with French subtitles. No German or Italian version exists. In this case, the rights to exploit the existing French version can be acquired for the whole territory of Switzerland, in the knowledge that no German or Italian language version will be available for exploitation.

Do all language versions of the film always have to be exploited?

No. Even if various language versions of the film are available, while these must be purchased for the entirety of Swiss territory, they need not be exploited. There is no requirement to exploit all language versions.

 

Last modification 16.04.2021

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