Facts
N.V. Philips, Phonographic Industry, in Baarn (Netherlands), manufactures records that it sells under the Philips brand. It has entrusted Philips AG in Zurich with the exclusive sale of its records in Switzerland and Liechtenstein. Armand Torre, who operates a household appliance and radio business, imports Philips records from abroad and resells them in Switzerland.
Philips AG summoned Torre before the Civil Court of Justice in Geneva, invoking its copyright and concluding with a request to prohibit the sale of the imported records, to confiscate and destroy the stock, as well as to pay damages. Torre disputed the existence of the copyright claimed by Philips AG.
The Court of Justice partially upheld the action, but the Federal Tribunal ultimately rejected Philips AG's claim.
Considerations
The Federal Tribunal considered that the performing artist does not hold a copyright on their interpretation, even if it may have artistic qualities. The contribution of the performer does not constitute an original creation, but only the faithful expression of the pre-existing work.
Although Art. 4 para. 2 CopA equates the adaptation of a work to a mechanical instrument with a protected reproduction, this provision is actually intended to protect the record manufacturer against unfair competition, and not to confer a copyright on the performers.…