The author has the right of first publication. This means that only authors may decide whether, when, how and under what author’s designation their work should be published for the first time (Art. 9 para. 2 CopA).
A work is considered to be published when it has been made available for the first time by the author or, with his consent, by third parties, to a large number of people outside the author’s private circle (Art. 9 para. 3 CopA). ‘A private circle’ refers to the personal sphere and the circle of people closely connected to each other, such as relatives or friends (Art. 19 para. 1 (a) CopA).
It can be difficult in an individual case to determine whether the work is still part of the private sphere or has already been made available to a larger number of people. The decisive factor then is whether authors make the work available to a circle of people whom they can no longer control (Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 9 N. 23).
The work can be published in any way, also electronically on the Internet, via e-mail, fax or mobile phone. It is also not mandatory for the public to take notice of the work; it is enough for them to have the possibility to do so.
The first publication has far-reaching consequences for authors:
No, pursuant to Art. 9 para. 3 CopA a work is only considered to have been published when it is made available to a larger number of people outside the private circle of the author. The study group is a group of students that are closely connected to each other in their field of study. The student can still ‘control‘ this group of people. The essay has therefore not been made available to a larger number of people (Art. 19 para. 1 (a) CopA) and has thus not been published.
This question can unfortunately not be answered with a clear ‘yes’ or ‘no’. According to current trends, one probably has to assume that it was published for the first time as the student makes her homework available to a larger group of people. Everybody should know by now that Facebook users have virtually no control over the sharing of their posts. Even if the student only makes her homework available to a private circle (e.g. a selected group of Facebook friends), there is no guarantee that the Facebook friends in question will not share the homework with other people who are not known to the student.
The doctoral student – only the author has the right to decide whether, when, how and under what author’s designation the work is published for the first time. She cannot assign the right of initial publication to the publishing house, as this is her non-assignable moral right. The publishing house ‘helps’ the doctoral student with the publication in that the doctoral student agrees in a contract with the publishing house to give her dissertation to the publishing house for reproduction and distribution.