The exceptions and limitations as provided in art. 19 para. 1, 22a, 22b and 24 para. 1 CA do not differentiate between commercial or non-commercial purposes. Only the limitation according to art. 24 para. 1 CA is applicable only for non-commercial use. The tariffs of the collective rights management organizations normally differentiate between public entities, like for example research institutions, and private companies.

Art. 19 para. 3 let. a CA provides that the complete or substantive copying of a copyrighted work available in commerce (e.g. books or journals) is not permitted. Therefore, only the copying of a portion of a so called work copy (Werkexemplar) is exempted. The only exception to this rule is provided in art. 19 para. 1 let. a CA, if the copy is made for personal use by the user himself. The CA does not provide for any limitation as to the type of copy (reproduction may take place on analogue or digital basis, BGE 133 III 473 E. 4.3). Various conditions apply for the use of archived works of broadcasting organizations (art. 22a CA), use of orphan works (art. 22b CA), and archive and backup copies (art. 24 CA).

Any copying, including copies made for school purposes (art. 19 para. 1 let. b) and for enterprises or institutions of internal information and documentation (Art. 19 para. 1 let. 10), and copies created with the involvement of a third person (art. 19 para. 2 CA) must be made from a legally obtained and lawfully created copy. The only exception to this rule is, according to prevailing doctrine and legislative history, a copy for personal use or within a circle of persons closely connected to each other (art. 19 para. 1 let. a CA). In a recent Federal Court decision re ETH documentary services from November 2014 the court has confirmed the principle that the copyrighted work has to be made from a legally obtained and lawfully created copy. However, these exceptions and limitations do not apply for computer programs (art. 19 para. 4 CA).

The exceptions or limitations provided in art. 19 para. 1 let. b CA apply to all educational institutions, regardless whether public or private, for profit or not-for-profit. The exceptions or limitations provided in art. 19 para. 1 let. c CA benefit all institutions, including research institutions, regardless whether public or private, for profit or non-profit. However, public (non-profit) entities may benefit from lower tariffs.

Subject to the educational purposes there are no further conditions as to the type or scope of the activities. With respect to persons, according to art. 19 para. 1 CA only teachers and students may enjoy such privileges. Furthermore, any exceptions and limitations are subject to art. 19 para. 3 CA. For instance, the recording or representation of a teacher’s and student’s performance beyond personal use is not permitted (art. 19 para. 3 let. d CA). With respect to archives: Only reproduction for preservation purposes is permitted according to art. 24 para. 1. In addition, institutions may use reproductions only for “internal information and documentation” according to art. 19 para. 1 let. c CA.

Any copying, including copies made for school purposes (art. 19 para. 1 let. b) and for enterprises or institutions limited to internal information and documentation purposes (art. 19 para. 1 let. c) and copies created with the involvement of a third person (art. 19 para. 2 CA) must be made from a legally obtained and lawfully created copy. In a recent federal court decision re ETH documentary services from November 2014 the court has confirmed the principle that the copyrighted work has to be made from a legally obtained and lawfully created copy. However, this exceptions and limitations do not apply for computer programs (art. 19 para. 4 CA).

Art. 19 para. 1 let. b CA for educational purposes and let. c CA for internal information and documentation purposes, both subject to limitations according to art. 19 para. 3 let. a–d CA. Exceptions and limitations are furthermore recognized by the courts in Switzerland. All exemptions or limitations with respect to the copyright protection for libraries and archives and including library search institutions are exclusively provided for in the statutory law, the Swiss copyright act e.g. (in particular article 19, 22 a) case law created by the courts does only serve the lawful interpretation of the statutory law, but does not create itself any exemptions or limitations.

As member state of the Berne Convention, the TRIPS, the WCT and the WPPT, which all provide for the Three-Step Test, Switzerland recognizes the Three-Step Test and applies it in its legislation. Furthermore, the Swiss courts apply it for the interpretation of statutory provisions, the Three-Step Test, if applicable.

Personal use by the individual or within a circle of persons closely connected to each other is permitted without any formal requirements or obligation to pay a remuneration. Virtually all other forms of permitted use are subject to a levy to a CRMO (see question 12), but no other formalities or procedures have to be followed.

The reproduction and use of works for educational purposes (art. 19 para. 1 let. b CA) as well as the reproduction and use of works for internal information and documentation purposes (art. 19 para. 1 let. c CA) is subject to the obligation to pay a levy to a CRMO (art. 20 para. 2 CA). Use for educational purposes or within an institution (art. 19 para. 1 let. b and c CA) and copies by a third person or using the devices of a third person (art. 19 para. 2 CA) trigger the obligation to pay a levy to a CRMO. The same is true with regard to broadcasting organizations re-broadcasting productions stored in their archives and making them available to the public (art. 22a CA), the use of orphan works contained in publicly accessible archives or archives of broadcasting organizations (art. 22b CA) or the making and storage of an archive copy of a work in an archive not accessible to the public (art. 24 para. 1 CA), or libraries and archives accessible to the public creating copies necessary for the safeguarding and conservation of their collections (art. 24 para. 1^bis CA). Claims for such remuneration may only be asserted by authorized CRMOs. CRMOs are private entities licensed by the Swiss Federal Institute of Intellectual Property who can assert specific rights under the Copyright Act for the benefit of the rightholders.

The amount of remuneration is set forth in tariffs edited by CRMOs. Such tariffs are negotiated between CRMOs and organizations representing users and must eventually be approved by a government agency, the Federal Copyright Arbitration Commission. The amount of remuneration depends on the volume of use (e.g. number of copies made) and the person of the user. That is to say, in most tariffs, the same use will trigger different amounts of remuneration depending on whether the user is (by way of example) a public administration, a library, a school or a services company. Libraries that are open to the general public (irrespective of whether they are privately or publicly held) must generally pay less than forprofit service companies for the same use.

The user (e.g. library or entity that runs the library) is often, but not in any case, liable to make these payments. Payments must be made exclusively to the relevant CRMO, which, in turn, distributes the remuneration to the individual authors. CRMOs have an exclusive right to claim such payments; as a result, payments cannot be made directly to the rightholders.

The EU Orphan Works Directive (2012/28/EC) is not applicable in Switzerland. Under Swiss copyright law (art. 22b para. 1 let. b CA), some specific uses of certain types of orphan works do not amount to copyright infringement, provided that the use has been licensed by a CRMO. However, the scope of this provision is very narrow and is only applicable if all of the following conditions are met:

• – Art. 22b CA is only applicable to “phonograms or audiovisual fixations”.
• – The phonograms or audiovisual fixations are either in publicly accessible archives or in archives of broadcasting organizations.
• – The rightholders are unknown or impossible to locate. The law does not define any minimal standards of a diligent search.
• – The phonograms or audiovisual fixations were produced or reproduced in Switzerland at least ten years prior to the intended use.

If all these conditions are met, the prospective user must pay the remuneration provided for in the applicable tariffs, what implies the implicit authorization to use the orphan works from the relevant CRMO.

This issue has not been clearly settled in Switzerland. On one hand, Swiss law does not provide specific rules for copyright law contracts (contrats de droit d’auteur; Urhebervertragsrecht) and Swiss CA does not specify if the exceptions and limitations (art. 19–28 CA) are mandatory or may be overruled by contract. Consequently, the principle of freedom of contract applies to contractual copyright law and should allow for overriding the exception or limitation by contract. On the other hand, the Supreme Court held in its decision ATF 127 III 26 that exceptions and limitations are imperative and that a contractual clause between the Musée d’art et d’histoire de Genève and the collective rights management organization Pro-Litteris overriding the catalogue exception (art. 26 CA) shall be void. The particular facts of the case (contract between museum and CRMO), however, prohibits any general conclusions.

• – Certain authors argue that exceptions or limitations may be overridden by contract, due to the principle of freedom of contract and to the dispositive nature of the exceptions and limitations.
• – Other authors advance the view that exceptions and limitations are imperative and may not be overridden by contract. In particular art. 24 CA provides that the archive and backup copies exception “may not be waived by contract”.

Consequently, the nature of exceptions and limitations cannot be answered generally and each provision requires a specific analysis, in particular a balance of interest (private interest of author on one hand and private interest of users or public interest on the other hand). However, the legislator (with new provisions such as art. 39a para. 4 CA) and the jurisprudence (with its decision ATF 127 III 26) have the tendency to consider the exceptions and limitations as imperative and that they may be not overridden by contract.

There are several efforts by private organizations to address use by libraries, archives and educational and research institutions. Some of the requirements aren’t detailed and stay vague, others are already more concise. The efforts are either based on existing limitations and exceptions to copyright protection or demand the creation of new exceptions and limitations. Hereinafter a few examples of such efforts and requirements:

• – A couple of organizations ask to extend the limitations and exceptions to copyright protection explicitly in favour of scientific libraries (vague requirement).
• – Also required is the permission to digitize and for the online publishing of works for so called “cultural memory institutions” like libraries, archives, museums etc. and – related to that – the creation of exceptions and limitations for collection and inventory catalogues held by memory institutions in the online domain. Libraries and museums for instance shall thereby get the possibility to digitize short parts of a work to include those parts into a catalogue.
• – One effort is also to broaden art. 26 CA to libraries and other “cultural memory institutions”.
• – There are also efforts made to broaden art. 22b CA. The regulation of the use of orphan works shall not only apply to phonograms or videograms, but also to other categories of works such as pictures and texts.
• – Some organizations ask to delete the restriction to copy music notes (art. 19 para. 3 let. c CA).

There should be general limitations allowing to make and use electronic copies of works for (1) storage of copyrighted works by libraries or archives for securing of works, (2) use of abstracts and excerpts of works in digital catalogues, (3) field research, and in general for accessing on library or archive terminals only (including the possibility to print or copy small parts or thumbnails of the work but not the whole work), but without increasing the number of copies accessible at one moment in time and (4) for making and sending copies of parts of commercially available work copies irrespective of whether the same part is otherwise independently commercially available.

For the purpose of education, there should be a copyright which permits any use of copyrighted works (following art. 19 para. 1 let. b CA) for educational purposes, including continuing education and online education (intranet), by any institution devoted to education, also private institutions, their teachers and students. Research institutions should be allowed to copy entire works for making them available within the research institution in a searchable format for research purposes, but not for making additional copies in whatever format. Research institutions should be defined according to functional criteria, not legal form.

The Three-Step Test is valuable as an internationally accepted standard for determining limitations of copyright. It is useful for the legislator in evaluating existing and introducing new exceptions and limitations of copyright law, and for courts and CRMOs in interpreting existing statutory limitations.

As the limitations are regularly the result of a weighted and conscious decision of the legislator in order to find a fair balance between two or more constitutional rights, it should generally not be possible to override copyright limitations by way of contract.

Remuneration should in general be payable, except in the case of copies for the purpose of securing works and for strictly private use. This follows also from the Three-Step Test.

• – The existing exceptions should be broadened to allow more than just one copy for safety purposes in article 24 para. 1, i.e. multiple backup copies should be allowed.
• – Libraries and archives: Introducing a new limitation allowing libraries the use of copyrighted works (abstracts, excerpts) for the purpose of establishing a library catalogue. Introducing a limitation to make available searchable electronic copies for use on library terminals.
• – Educational and research institutions: The limitation as provided in article 19 para. 1 let. b CA shall be expanded to cover the needs of all types of education institutions. With regard to research institutions, the exception in article 19 para. 1 let. c CA should be expanded to copies for field research purposes and interorganizational research (commercial and nonprofit research).

International harmonization is desirable. International harmonization with respect to exceptions and limitations to copyright protection for libraries, archives, and for research and education purposes is desirable to facilitate international exchange and to create a levelled playing field for rightholders and users.

Where warranted by the Three-Step Test, such exceptions and limitations should be complemented by a right to remuneration.

23. If your answer to question 16. or 17. is no, should this be explicitly set out in any international treaty/convention?

Not applicable.

• a) to what educational and research institutions should these exceptions or limitations apply;
• b) See answer to question 17. above.
• c) to what activities should these exceptions or limitations apply;
• d) See answer to question 17.. above.
• e) under what conditions should the activities be undertaken or the copyrighted work be used?

The copies should not be made from a copy that was obviously not legally made or made available. Otherwise see answer to question 16. above. For remuneration, see answer to question 20 above.

For the questions below, please provide an answer for each exception or limitation mentioned above (as applicable).

The applicable provisions of the copyright statute define the criteria which would have to be met to use the exceptions or limitations. Otherwise, anyone benefitting from such exceptions and limitations may benefit from them automatically without having to undertake any procedures. Libraries, archives and institutions shall inform CRMOs of such use.

The remuneration should be determined in negotiations between representatives of the rightholders and of the users and periodically re-negotiated. Remuneration should depend on the specific use, e.g., a higher remuneration may be due for commercial use than for non-commercial use. The archive, library or institution should be liable for the payments and may then shift the cost to the end-users (e.g., borrowers in libraries, students, renters of work copies, etc.). Payments should be made to CRMOs set up by the authors or the rightholders directly, making sure that the authors or interpreters receive an adequate share.

• – The Working Group would welcome broad and internationally harmonized rules that enable certain uses of orphan works by paying a remuneration either to collecting societies (if such societies exist in the relevant jurisdiction) or into a trust fund set up for the benefit of the rightholders. In the view of the Working Group, Rules governing the permitted use of orphan works should have the following features:
• – The rules should apply to all kinds of works equally (graphic, text, audiovisual, etc.).
• – The rules should apply to all kinds of users equally (and e.g., not only privilege broadcasting societies or the like).
• – The rules should be harmonized, in order to enable cross-border use of orphan works.
• – The rules should set out the minimal degree of diligence required in searching for the author before the work can be deemed “orphan”.
• – The permitted uses should not include the infringement of the author’s moral rights (e.g. modifications of the work or use in a context which harm the author’s personality rights).

See answer to question 19 above.

The efforts made by private organizations should be taken into account when creating new exceptions and limitations to copyright protection. The legislative process is complex and divided in several stages. In Switzerland the whole legislative process results from a collaboration between government and parliament with a participation of nonstate stakeholders. It’s therefore not an exclusive task of parliament and government to establish law. The legal matters requiring regulatory action are furthermore highly specialised. Private organisations often have this specialized practical knowledge at their disposal, but pursue interests of specific groups, that may conflict with the interests of other groups. The requests and the proposals of private organisations mirror therefore the current copyright trends in society. Consequently taking into account the efforts of private organisations in the legislative process makes it possible to include a wide spectrum of specialized knowledge and interests, but does not relieve the legislator from the task of balancing these interests in finding a just equilibrium. Accordingly, the debate surrounding the current revision of the CA reflects mostly the requests of private organizations and associations representing different interests.