5a.2.5.1 Limitation of private use

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The limiting provisions for private use (Art. 19 CopA) do not apply absolutely but are once again limited on their side (‘counter exceptions’ or exceptions to the exceptions) in order to not overly infringe the exclusive rights of the author or owner of rights. To this end, the law provides the following regulations pursuant to Art. 19 para. 3 CopA:

  • Apart from in the case of strictly private use in the personal sphere, copying of visual art works (Art. 19 para. 3(b) CopA) and ‘graphical representations of musical scores’, i.e. sheet music (Art. 19 para. 3(c) CopA) are actually completely illegal, independent of their commercial availability. However, as this is almost impossible to implement in practice, the Joint Tariffs (JT 8 and 9) permit private use in more cases than the law (c.f. the information sheet of SUISA on sheet music in this regard). Visual art works may therefore be completely copied for teaching purposes, for example, and sheet music as well as works pursuant to Art. 19 para. 3(a) CopA may still be incompletely copied for a choir, for example.
  • Photographs are not specifically mentioned in Art. 19 para. 3 CopA. In the case of this work category, this raises the question as to whether they fall under Art. 19 para. 1(a) CopA. If the answer is yes, then they may also only be incompletely copied if they can be obtained commercially. However, an incomplete copy of a photograph or an image may represent an infringement of the integrity of the work pursuant to Art. 11 para. 2 CopA and would therefore be illegal. According to ProLitteris and the Joint Tariffs (JT 7, 8 and 9), images and photographs may be copied completely within the scope of private use with effect from 2017.

The fixation of recitations, performances or presentations of a work on blank media (i.e. phonograms, audiovisual or data carriers) is also forbidden by law (Art. 19 para. 3(d) CopA). There has been considerable debate in the legal doctrine on whether this prohibition also applies to private use in the personal sphere or in a private circle (Art. 19 para. 1(a) CopA). In the eyes of part of the doctrine, a concertgoer may, for example, film their favourite band at a public live concert and then look at this film on their computer at home, because the concertgoer made the recording only for their own private use. (c.f. Müller/Oertli-Gasser, Urheberrechtsgesetz, 2nd edition, Art. 19 N 47 in this regard for further information). Irrespective of this legal dispute, it should be added that it is almost impossible to implement this prohibition in the time of mobile phones. It definitely does not apply when recordings are made at non-public events such as school theatre or private events within the scope of private use in the personal sphere or in a private circle. Furthermore, the Joint Tariffs (JT) permit more than the law with regard to the fixation of recitations, performances or presentations of a work on phonograms, audiovisual or data carriers (Art. 19 para. 3(d) CopA) within the scope of private use for educational purposes.

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‘Commercially available’ (Art. 19 para. 3(a) CopA)

(Art. 19 para. 3(a) CopA)
The term ‘commercially available’ originates from a pre-digital time when books and records were sold in bookshops and similar businesses and when it was not possible to purchase individual songs, articles or images over the Internet.

Thus, a work used to be considered exhausted when you could no longer buy it commercially. With today’s digital options, the situation is much more difficult. Questions arise as to whether a book whose printed version is exhausted and for whom no further edition is planned can still be considered ‘commercially available’ if it can still be purchased on the author’s private homepage as an e-book or be downloaded free of charge. Or what about a record that has not been available in the shops for a while but can still be found at a collector’s?The term ‘commercially available’ must now be adjusted to the digital sales forms: basically, something is also considered to be ‘commercially available’ when it can be bought over the Internet. However, this means that it is almost impossible for works to achieve the status of ‘exhausted’. Yet it is still decisive as to whether the corresponding work is in the customary marketing form. In layman’s terms, the publishing house cannot protect the marketing of a book by also offering every individual chapter of the book as a PDF document on its homepage in addition to the printed book. This is not the case when the publishing house sells the book in both printed and e-book form. As long as the e-book is available on the Internet, it is irrelevant whether the printed version is eventually exhausted. However, if a printed book is only available in a traditional second-hand bookshop, it is no longer considered to still be commercially available. The situation may be different in the case of digital second-hand bookshops such as ZAVB or Amazon.

On-demand services – copying of works made contractually available online

What is the permitted scope and the remuneration (Art. 20 CopA) of legal downloads, e.g. via iTunes (Art. 19 para. 3(a) CopA)? Downloading is an act of copying that is legally bound to the counter exceptions specified in Art. 19 para. 3 CopA if it is done outside of strict private use in the personal sphere or in a private circle (Art. 19 para. 1 lit(a) CopA) but for the other private uses (educational or professional). Thus, you could potentially only be able to make incomplete copies (Art. 19 para. 3(a) CopA) and you would have to pay remuneration pursuant to Art. 20 CopA. This would lead to the questionable outcome where a user is only permitted – despite having agreed otherwise in the licence agreement with iTunes – to download this music incompletely. Furthermore, the user would have to pay iTunes directly for that download pursuant to the aforementioned licence agreement, and pay remuneration to the collecting societies for a second time as compensation pursuant to Art. 20 CopA. Thus, there is a crossover from collective exploitation due to statutory licence and individual exploitation, based on contractual licence. This must be avoided; otherwise, there will be unjustified multiple remuneration. For this reason, Art. 19 para. 3bis CopAwas introduced during the revision of the Copyright Act in 2007 to prevent double payments in particular. According to this, copies which are permitted due to legal online offers do not fall under the counter exceptions of Art. 19 para. 3 CopA, nor must remuneration be paid to the collecting societies pursuant to Art. 20 CopA.

However, legal doctrine does not agree collectively as to whether this regulation only relates to the first copy, i.e. the first download or also to every further copy; for example, the further copying of music on the computer onto an MP3 player or downloading scientific articles from an e-journal and copying them for educational purposes then falls under the obligation to pay remuneration in accordance with Art. 20 CopA (c.f. Müller/Oertli – Gasser, Urheberrechtsgesetz, 2nd edition, Art. 19 N48a; Rehbider/Viganò, Urheberrecht, 3rd edition, Art. 19 N37; Barrelet/Egloff, Urheberrecht, 3rd edition; Art. 19 N28a; Brändli Sandra, Data Mining als Forschungsmethode: Die Probleme des Grabens nach Datengold, in Mensch und Maschine – Symbiose oder Parasitismus?, 2014, p. 54 in this regard). This must be clarified by the legislator or the courts.

FAQ

5.2.5.1-1 May historical sheet music be copied?

Musical scores which are no longer protected by copyright because the author has been dead for more than 70 years are considered to be in the public domain and may be used freely. However according to the information sheet of the collecting society SUISA, this cannot be permitted due to competition law. The decisive factor is the question whether the score to be copied is a market-ready product which is adopted as such without reasonable personal effort using a technical reproduction process. The products must therefore be able to be commercially exploited without further ado (c.f. BGE 131 III 384. p. 389).

5.2.5.1-2 May I, as a private person, download music or films from an Internet exchange market (peer-to-peer) for my private use?

Yes, the downloading of works from an Internet exchange market for private use in the personal sphere or in a private circle (Art. 19 para. 1(a) CopA) is permitted under Swiss copyright law as long as the works which are offered in the Internet exchange market have already been published. It would be illegal to download unpublished works as private use is only permitted for published works. From the perspective of the user, it is irrelevant whether they download works from a legal or an illegal source.

But it must be noted that the upload of works to an Internet exchange market is illegal because it is no longer covered by private use (Art. 19 CopA); however, an exception would be if the work is only used within the scope of private use in the personal sphere or in a private circle, i.e. among people who are closely connected to each other, such as relatives or friends. It is important to note that many file-sharing programs automatically download and upload parallel files.