5a.3.2 Archive and backup copies

A privileged limitation regulation vis-a-vis Art. 24 para. 1 CopA applies pursuant to Art. 24 para. 1bis CopA for the special circle of users of libraries, archives, educational institutions and museums if these institutions are publicly accessible. In accordance with this regulation, the archive copies do not have to be identified and copies ‘required for archiving and storage’ may be copied.

Furthermore, these institutions may make copies, whether analogue or digital, whether they are original copies or made from already copied work examples – however, only from their collection.

In the process, the copying may include the complete work in question. However, in doing so, the institution may not look to make any financial or commercial gains. It is unclear what the legislator exactly means with the differentiation between financial and commercial. However, it is clear, for example, that a library may not simply copy a book that is in less than perfect condition due to frequent use. Instead, if the book can still be purchased from the bookshop, the library must purchase a new copy. Otherwise, any savings it makes by not purchasing the book will be calculated as financial gain. A library may also not purchase a popular music CD, for example, and copy this based on Art. 24 para. 1bis CopA to allow it to be borrowable simultaneously on several occasions.

In the case of computer programs, one copy may be made for backup purposes pursuant to Art. 24 para. 2 CopA. The archive copy may not be used in addition to the copied computer program, and the copy may only be made from a legally used copy.

FAQ

5.3.2-1 May a library (‘owning library’) copy a book from its collection or a DVD from another library (‘borrowing library’) based on Art. 24 para. 1bis CopA so that it can include the book or the DVD in its collection to allow it to be borrowed?

No, the institution may only make archive and backup copies pursuant to Art. 24 para. 1bis CopA from its own collection.

However:

The borrowing library can request a copy of a book or a DVD from the owning library based on Art. 19 para. 1(c) in conjunction with Art. 19 para. 2 CopA for its in-house professional use; in the process; however, only excerpts from the book or the DVD may be copied (Art. 19 para. 3(c) CopA). A copy of the book may principally not be lent to the library users of the borrowing library.
However, the borrowing library can also request an excerpt copy of a work from the owning library for an individual library user.
When the book or the DVD, etc. is no longer commercially available (= exhaustible), these works can be copied completely for private use (private use in the personal sphere or for educational purposes or professional use) (Art. 19 para. 3(a) CopA)

5.3.2-2 May an archive or a backup copy be put online based on Art. 24 para. 1bis CopA?

No, the purpose of Art. 24 CopA is the preservation of a work rather than making it publicly available (Art. 10 para. 2(c) CopA). This is no longer covered by Art. 24 para. 1bis CopA. This requires the consent of the author or the owner of rights.