The Federal Supreme Court recently clarified various issues relating to the interpretation of the fair use provision of Article 19 of the Copyright Act. Article 19(1) allows the reproduction of copies of a copyright-protected work for, among other things, private use and use by enterprises and public institutions for internal information and documentation purposes. Paragraph 2 of the provision states that those who benefit from the fair use exemption can have the copies made by a third party. However, apart from copies for purely private purposes, it is forbidden to make complete or extensive reproductions of copies obtainable in commerce (Article 19(3)(a)).

The library of the Swiss Federal Institute of Technology in Zurich relied on the fair use provisions with respect to its document service. As part of this service, on the request of a customer, the library scanned parts of the journals or books it had in its library, copied the scans and sent the copies either by email or post to its customers. Customers paid for this service. Certain publishers sued the library and claimed copyright infringement. They argued that the library's service did not fall under Article 19(2) of the act, and that the library made complete reproductions of copies that were available in commerce, since the publishers offered their content for sale online. Whereas the cantonal court admitted the complaint, the Federal Supreme Court denied copyright infringement.

First, the Federal Supreme Court rejected the cantonal court's position that Article 19(2) covered only reproducing the works, and not sending the reproductions to customers. It argued that only the reproduction itself was relevant from a copyright perspective; the mere sending of a reproduction to a third party does not fall under the exclusive right of a rights holder. The cantonal court was therefore wrong to qualify the service as an infringement not falling under the fair use provision of Article 19(2).

Further, the Federal Supreme Court rejected the publishers' argument that the library had made complete reproductions of copies that are available in trade and therefore fell under Article 19(3)(a). It was decisive that the library had made the reproductions from journals and books that contained other works in addition to the copied articles. Accordingly, the copies were not reproduced completely. The specific copy of a copyright-protected work must be reproduced completely to fall under Paragraph 3(a). Hence, as long as the library made reproductions from only parts of journals or books, it did not matter that the reproduced articles were also sold in standalone format (eg, the publishers' online archive). The library could still rely on the exemption of Article 19(2).

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

For further information on this topic please contact Roger Staub at FRORIEP by telephone (+41 44 386 6000), fax (+41 44 383 6050) or email (rstaub@froriep.ch). The FRORIEP website can be accessed at www.froriep.com.

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