Private use in the personal sphere or in a private circle is a statutory licence. Therefore, the user does not need anyone’s consent to use the work. Compared to other forms of private use, private use in the personal sphere or in a private circle is particularly privileged. This is why no remuneration is required – with the exception of the blank media levy pursuant to Art. 20 para. 3 CopA (Art. 19 para. 1(a) in conjunction with Art. 20 para. 1 CopA). This special privilege is based on the notion that the privacy of the private person and their close relationship structure should be protected and may not be infringed by any checks of uses of works, especially as it would not be possible to monitor this effectively.
Private use in the personal sphere or in a private circle refers to privacy in the personal area, which is considered to be worthy of protection. The decisive factor is not the place of the action but rather the personal context. As soon as the action occurs in the public sphere, it no longer falls under the personal area.
- Example for the personal area: playing music at home, even with the window open and the possibility that other people may hear the music
- An example that is no longer in the personal area: street music
Who benefits from private use in the personal sphere or in a private circle?
The users of the work in the private personal area or in a private circle, such as relatives or friends.
What is permitted?
Every use of published works is permitted (Art. 19 para. 1 (a) CopA). Complete copying, editing, distributing, making perceptible, presenting, renting, etc. are permitted. However, in the process, it is important to remember that this only applies to strictly private use in the personal sphere.
- Examples of private use in the personal sphere or in a private circle: complete copying of a book on a private photocopier (but not on the one at the library or on the one at the copy shop); a student copies a CD that they bought in a shop with their own computer to load the content onto their cousin’s iPod; makes a collage from pictures from a magazine as a present for their grandmother; compiles excerpts from teaching materials and copies this compilation for a fellow student; copies sheet music for the ad hoc family choir formed for their grandmother’s birthday; uploads documents to a cloud memory to which only members of their shared accommodation, etc. have access
- Examples of uses no longer covered
by private use in the personal sphere: uploading music into an Internet
exchange market, complete copying of teaching material for all the
participants in a university lecture, putting lecture notes online
without the author’s consent, copying sheet music for a choir, complete copying of a book on a library’s photocopier for private use in the personal sphere.
GOOD TO KNOW
(Art. 19 para. 1 in conjunction with Art. 19 para. 2 CopA)
Pursuant to Art. 19 para. 1(a) CopA, the user may copy a work completely if they do it for their own private use (private use within the personal sphere or in a private circle). However, this limiting provision is only applicable if they use their own photocopier. As soon as the user uses the photocopier of a third party: for example, the library or the copy shop (Art. 19 para. 2 CopA), the use of the work no longer falls under private use within the personal sphere or in a private circle. The user may use the photocopier of the third party for their private use, but they no longer have the privilege of ‘complete copying’. In such a situation, the user is therefore only permitted to make an incomplete copy of the work (Art. 19 para. 2 in conjunction with Art. 19 para. 3(a) CopA). An exception is made in the case of an exhausted work; then, the work in question may be completely copied (Art. 19 para. 3(a) CopA).
Copyright-protected works may only be copied under particular conditions, either because the author or the owner of rights has given their permission for this or because the law permits the copying (limiting provisions). However, music, films and games, etc. are actually often pirated and distributed in the Internet without permission and without respect for the law, which is fundamentally illegal and has the corresponding legal consequences. However, in Switzerland there is an exception in the case of private use in the personal sphere or in a private circle: downloading for this kind of private use is permitted here even when the work is illegally offered (e.g. copying a CD which is a pirated copy or downloading a film that was illegally uploaded onto a sharing platform, etc.). Copying and downloading for private use in the personal sphere or in a private circle is even permitted when the user knows that it is copied from an illegal source (this is not the case under German copyright law § 53 para. 1 German Copyright Act (UrhG), for example). However, in this case, as in other cases of private use, two important aspects must be considered: 1. The work to be copied must have been published; the copying of unpublished works is always illegal. 2. The work may not be uploaded, particularly when downloading protected works using peer-to-peer software. This software is usually configured so that an upload always occurs during the download.
The blank media levy is a fee for the private copying of protected works on analogue and digital phonograms, audiovisual and other data carriers which are suitable for recording/storing and playing music, films, images and other data. Besides conventional audiotapes and video cassettes, blank CDs and DVDs, blank media also includes digital storage media on audio/video recorders, mobile telephones or on tablets. Anyone who manufactures such carriers or imports them into Switzerland owes remuneration to the author pursuant to Art. 20 para. 3 CopA; however, claims for remuneration may only be asserted by collecting societies. Depending on the blank media or storage medium in question, the fees are regulated in joint tariffs. (c.f. Joint Tariff 4 and 4i of SUISA). However, the manufacturers or producers of such media usually pass this fee on to the consumers. In reality, this means that a fee will be indirectly charged to consumers for private use.
FAQ
No, from a legal perspective, this is considered to be perception of a work, which is not a copyright-relevant use in the case of published works. Reading and looking at published works are always permitted under copyright law.
The personal area is considered to be privacy which is worthy of protection. The decisive factor is not the place of the action but rather the personal context. As soon as the action takes place in the public sphere, it no longer falls under the personal area.
- Example for the personal area: playing music at home, even with the window open and the possibility that other people may hear the music
- An example of an action that is no longer in the personal area: street music.
The people must have a ‘close connection’ to me. Particular examples are family members, family-like communities such as shared accommodation, friends who have a close personal relationship (Art. 19 para. 1(a) CopA).
Generally speaking, no; such a close connection does not occur between ‘Facebook friends’. Legal doctrine (still) assumes that contacts which have been made on the Internet do not apply in this case. The close connection just arises in a small, strictly limited circle of people, which is not the case for Facebook friends.
Generally speaking, no, because the ‘personal area’ also necessitates that there be a close personal relationship between the people concerned. This is not the case with work colleagues or fellow students. However, something else can result when particular work colleagues or fellow students have a closer relationship with each other than the usual employment or training relationship (e.g. a close friendship develops between two or three students, or two students move into shared accommodation together).
Yes, published works may be copied for strictly private use (private use in the personal sphere or in a private circle for oneself and for closely connected people such as friends and relatives). You do not require the author’s consent to do so. If the copies are made on a private photocopier, the complete works may also be copied.
No, generally not. Copyrighted works may only be used when they have been published. A work is considered to have been published when the author makes his work available to a larger number of people outside his personal circle and can no longer exercise any control over who can use his work in this sense.
No, complete copies are not permitted outside the scope of private use in the personal sphere or in a private circle (Art. 19 para. 3(a) CopA). ‘All fellow students’ goes beyond the scope of the private area, which consists of a circle of persons who are closely connected with one another.
The jurisdiction in Switzerland is not uniform in this regard. According to the Civil Court of Basel, incomplete is understood to mean a maximum of 75% of a commercially available work (Civil Court of Basel-Stadt dated 19.06.2002 in sic! 2003, 217) while the Appellationshof Bern understands this to mean a maximum of 90% of the work that is commercially available (Appellationshof Bern dated 21 May 2001 in sic! 2001, 613).⇒ Exceptions for private use:
- paintings, photos, graphics, sketches and other works of art may be completely copied (Joint Tariffs 8 and 9)
⇒ Exceptions for private use for educational purposes:
(c.f. the Joint Tariffs for further general information).
