Does the actual use of the work fulfil the condition of a particular limiting provision,is the permitted use of the work subject to particular limitations, and does use of the work obligate the user to pay remuneration, if necessary?
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5.1 How does the law compensate the encroachment of the author’s exclusive right?
As a result of the limiting provisions, the author has to accept encroachments of their exclusive right. However, the law provides certain compensatory measures for the protection of the author and their rights based on international requirements or the Three-step Test:
- Strict conditions: on the one hand, the limiting provisions are only applicable under certain conditions (e.g. use of a work in an educational context Art. 19 para. 1(b) CopA) and
In layman’s terms, you can view these provisions as ‘counter exceptions’ to the limiting provisions (see Müller/Oertli – Gasser, 2nd edit., Art. 19 CopA N 30 et seq.). As a result of the limiting provisions, authors must, by way of exception, tolerate encroachments of their exclusive right to their work(s). However, this does not mean that the users of works who benefit from the limiting provisions should be allowed to use the work unconditionally and without restriction. Their rights are limited by counter exceptions or even ‘exceptions to the exceptions’; otherwise, authors would no longer be able to exploit or use their works themselves.