5a.2.5 Counter exceptions to the copyright limiting provisions (exceptions to the exceptions)

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The purpose of the Copyright Act is to balance the interests of the author or the owner of rights in the protection of their exclusive rights in their works, and the interests of the public in using their works in the best possible way. Thus, the Act provides limiting provisions which limit the exclusive rights of the authors. Users must therefore accept particular encroachments of their exclusive right – however, the limiting provisions should not limit the exclusive right of the author or the owner of rights to the extent that they impact the latter’s own normal exploitation of their work; i.e. the author is unreasonably impeded from still exploiting their work.

  • Example of an impact on normal exploitation: the right of the publishing house to normal exploitation of an educational book is impacted when a teacher buys an educational book for the first time and makes complete copies of it for all their pupils so that their pupils do not need to buy the textbook.

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Exceptions to the exceptions, or the Three-step Test

International law (Art. 9 para. 2 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), Art. 13 Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), Art. 10 WIPO Copyright Treaty (WCT), Art. 16 para. 2 WIPO Performances and Phonograms Treaty (WPPT)) specifies for the protection of the author and the owner of rights when and to what extent their exclusive right may be limited. The Three-step Test conforms to the legislature and specifies

  • that copyright limitations may only be limited to particular special cases (1st level),
  • normal exploitation of the work by the author and owner of rights may not be impacted (2nd level),
  • and the legitimate interests of the author and the owner of rights may not be unreasonably infringed (3rd level).

The limitation to particular special cases (1st level) forbids general or very broad limitations; for example, copying for any use. However, the limitation to particular cases of private use, such as in Art. 19 para. 1 CopA, or the copying of a work for disabled people (Art. 24c CopA) is permitted.

The 2nd level is supposed to ensure that the limitation of the exclusive right of the author and the owner of rights or their option to exploit their work are proportionate. The customary (commercial) marketing forms remain reserved to the author and the owner of rights. Their financial interests should continue to be protected. For example, the publishing house should reserve the right to sell complete magazines on the market (Art. 19 para. 3(a) CopA). However, the user entitled to private use is permitted to copy individual articles from a corresponding magazine; because the sales of magazines will not be impacted as a result (c.f. BGE 140 III 633 as well for further information).

Finally, through the 3rd level, there is a balancing of interests between the interests of the author or the owner of rights and those of the third party. Seen from this angle, the law presupposes a duty of remuneration to the author or the owner of rights, if necessary, in order for the encroachment of their exclusive rights not to seem unreasonable (BGE 133 III 486).