- Basics of Copyright
- 1. WHERE... is the work used and which national law is applicable?
- 2. WHAT... is a protected work?
- 3. WHO... owns the copyright in the work?
- 4. WHICH... rights in the work are protected?
- 5b. HOW ... can other people use a work? - Contractual licenses
- 6. AND... responsibility and sanctions?
- 7. Copyright and social media
5.2.5 Counter exceptions to the copyright limiting provisions (exceptions to the exceptions)
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.
Exceptions to the exceptions, or the Three-step Test
- 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 inArt. 19 para. 1 CopA, or the copying of a work for disabled people (Art. 24c CopA) is permitted.
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).