The record manufacturer has no exclusive right to public performance of records of its manufacture

Facts

The dispute opposes eight record-producing companies, including a Swiss company, Turicaphon A.-G., and two defendant companies, Novomat A.-G. and Piano-Eckenstein A.-G., which operate music machines containing records belonging to the plaintiff companies. The plaintiffs attempted unsuccessfully to assert their performance rights over the records they manufactured against the defendants.

The plaintiffs brought an action before the court on 14 March 1959, requesting that the defendants be prohibited from publicly performing records manufactured by the plaintiffs. The defendants requested the dismissal of the action.

The Basel-City Civil Court dismissed the action on 26 May 1961. The plaintiffs appealed against this judgment.

Considerations

The Federal Court examined the question of whether the record manufacturer has an exclusive right to public performance of records of its manufacture. It considered that Article 4, paragraph 2, of the Copyright Act (CopA) does not confer on the record manufacturer a copyright, but only protection against unfair competition.

The Federal Court rejected the literal interpretation of Article 4, paragraph 2, CopA, which considers that the record manufacturer has a copyright. It also considered that the repeal of Article 21 CopA by the 1955 amendment did not confer on the record manufacturer an exclusive performance right.

Th…