In a recent decision, the Federal Supreme Court clarified various issues that are important for the interpretation of the fair use provision of art. 19 of the Swiss Copyright Act. Art. 19(1) allows the reproduction of copies of a copyright protected work inter alia for private use and for use by enterprises and public institutions for internal information and documentation purposes. Para. 2 of the provision says that those who benefit from this fair use exemption are allowed to have the copies made by a third party. Apart from copies for purely private purposes, however, it is not allowed to make complete or extensive reproductions of copies obtainable in commerce (art. 19(3)(a) Copyright Act).

The library of the Swiss Federal Institute of Technology in Zurich (ETH) relied on these fair use provisions with respect to its documentary service. As part of this service, upon request of any of its customers, the library scanned parts of the journals or books it has in its library, copied those scans and sent the copies either by email or by ordinary mail to its customers. The customers paid for this service. Certain publishers sued the library and claimed copyright infringement. They argued that the library service did not fall under art. 19(2) of the Copyright Act and that they made complete reproductions of copies that are available in commerce, since the publishers offered their content article by article for sale, namely on the internet. Whereas the Cantonal Court had admitted the complaint, the Federal Supreme Court denied that there was a copyright infringement.

First, the Federal Supreme Court rejected the position taken by the Cantonal Court that art. 19(2) Copyright Act only covered the reproduction of the works but not the sending of the reproductions to customers. It argued that only the reproduction itself was relevant from a copyright perspective, whereas the mere sending of a reproduction to a third party (i.e., to the customers) does not fall under the exclusive right of the right owner. The Cantonal Court was therefore wrong in qualifying the service as an infringement not falling under the fair use provision of art. 19(2) Copyright Act.

Further, the Federal Supreme Court rejected the right owner's argument that the library made complete reproductions of copies that are available in trade and therefore fall under art. 19(3)(a) Copyright Act. It was decisive that the library made the reproductions out of journals and books that contained other works in addition to the copied article. Accordingly, the copies were not reproduced completely. It is the very specific copy of the copyright protected work that must be reproduced completely to fall under para. 3 let. a. Hence, as long as the library makes reproduction from parts only of journals or books, it does not matter that the reproduced articles are also sold in a stand-alone format, e.g. in the publisher's online archive. The library can still rely on the exemption of art. 19 par. 2 Copyright Act.

This decision has shed a light on one of the many aspects of art. 19 Copyright Act, which aims to balance the interests of all parties involved including copyright owners and users.

Originally published March 2015.

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