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20.02.2025 | Law and policy, Copyright
AI regulation in Switzerland: Federal Council chooses a sectoral approach
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Copyright grants creators the exclusive right to determine if, when and how their works are used. What does this mean for the training and use of AI models? From a copyright perspective, various aspects play a role, depending on which technical process is under consideration:
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Copyright-protected content (e.g. texts, images or music) is regularly used to create a data set for training AI models. This content is often automatically included in the data set without the consent of the rights holder (i.e. a licence). It’s almost impossible for authors to determine whether their works have been used in a data set. Rights holders are therefore calling for a transparency obligation to be introduced in Switzerland with regard to data used for AI training, as is already provided for in the EU’s AI Act.
When an AI model is trained, the data provided is analysed and processed. The model recognises patterns in the data and adjusts its parameters. As training data sets often contain protected content, some Swiss politicians are now calling for AI training with works and the use of AI to be explicitly recognised as an exclusive right in law (Motion 24.4596 by the Councillor of States Petra Gössi on better protection of intellectual property against AI misuse). The law would clearly state that licences must be obtained for AI training.
The use of a trained AI model may also have implications relating to copyright. If copyright-protected works (or parts of such works) are recognisable in AI-generated material (output), the output could be classified as an adaptation of a work. Users would require corresponding licences to legally use this output. Using such output without a licence would have legal consequences, such as liability for damages. It wouldn’t matter if the copyright infringement was unintentional. Further clarification is needed on whether providers of AI applications should be required to design the applications in a way that respects copyright.
The AI-generated output itself could also be protected, which raises additional copyright issues. It could be protected if it can be classed as an expression of a human, intellectual creation and if it’s sufficiently individual. This can occur if a person creates something with their own creative skills and merely uses the AI model as a tool. This would be the case, for example, if the user were to influence the output creatively by uploading their own drawings or images as prompts.
The Federal Council has decided to pursue a sector-based approach to AI (see AI regulation in Switzerland: Federal Council chooses a sectoral approach, 20 February 2025). In regard to copyright law, the Federal Council wants to create legal certainty to strengthen Switzerland as a centre for innovation and the creative industries in equal measure. The IPI is responsible for this task.