Therefore, the user does not require anyone’s consent to use the work. However, use pursuant to JT 7 must be remunerated (Art. 19 para. 1(b) in conjunction with Art. 20 para. 2 CopA). The remuneration is paid in a lump sum via the Swiss Conference of Cantonal Ministers of Education or via the cantons or educational institutions.
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5.2.2 Private use for educational purposes
In the educational context, every use of a work by a teacher and their class for educational purposes (Art. 19 para. 1(b) CopA) is privileged by the limiting provision of private use for educational purposes. However, pursuant to Joint Tariff (JT) JT 7, the use must be remunerated (Art. 19 para. 1(b) in conjunction with Art. 20 para. 2 CopA).
Who benefits from private use for educational purposes?
The law speaks about ‘by a teacher and their class for educational purposes’ (Art. 19 para. 1(b) CopA). However, both the circle of users of the ‘teacher’ and the purpose of the ‘teaching’ must be understood in the widest sense beyond the actual meaning of the word. This includes:
- pupils, students, teachers, university lecturers, etc., all levels of public and private educational institutions and the associated libraries
- Teaching is considered to be every event which takes place in the educational context (education, further training and development), traditional teaching in the (school) class, multi-class forms of teaching, project teaching, lectures, seminars, completing homework, (online) distance education, use of an internal online platform of the educational institution, showing a film in a school camp (as long as it is not just for communication purposes), etc.
What is permitted?
- newspapers and magazine articles, essays: complete copies (BGE 140 III 616)
- paintings, photos, graphics, sketches and other art works: complete copies (JT 7 sect. 7.3.)
- sheet music: only incomplete copies (JT 7)
- use (record, store, make available and store free of charge) of radio and TV programmes on a password-protected platform at schools: complete programmes (Joint Tariff 7 sect. 7.4.)
- music from a CD or film from a DVD: incomplete copies (extracts) (Joint Tariff 7)
GOOD TO KNOW
The rather antiquated legal wording in Art. 19 para. 1(b) CopA,‘Use of a work by a teacher’, does not clarify who exactly is privileged by the limiting provision of private use for educational purposes. The circle of users actually includes many more people than just the teacher who teaches in the class. Pursuant to Joint Tariff JT 7, pupils, students, teachers, university lecturers, assistant lecturers – respectively all levels, both public as well as private educational institutions – employees of schools and teaching institutions, assistant, academic and non-academic employees included, as well as the associated libraries belonging to the educational institutions also fall under educational use.
From today’s perspective, the circumlocution ‘for educational purposes’ is also no longer suitable; teaching has not only taken place in the classroom for some time now. ‘Educational purposes’ refers to every event including a teacher and their pupils which takes place within the scope of the teaching plan. This also includes completing tasks at home, online distance education, seminars, etc.The act of use includes every use of works such as books, images, films, music, radio and TV programmes. Permitted acts of use include, for example, lectures, presentations, performances, recordings, editing, copying on paper, electronic storage, scanning, publishing over an internal network (internal online platform), making perceptible, saving on internal networks, CDs, DVDs, etc. However, the scope of the use of a work differs, depending on the type of work.
The law speaks of ‘educational purposes’, i.e. when a teacher would like to use a work for teaching purposes. However, ‘teaching’ does not refer to traditional school teaching in the classroom or in class groups. Instead, it includes every event in an educational context, in particular multi-class forms of teaching, project teaching, lectures, seminars, as well as completing tasks at home, (online) distance education, and using an online platform of the educational institution.However, an ‘educational context or educational use’ only exists when someone uses a work for these events to fulfil the teaching or learning purpose. And this ‘someone’ does not necessarily have to be a teacher. Pursuant to Joint Tariff JT 7, pupils, students, teachers, university lecturers, assistant lecturers – of all levels, in both public as well as private educational institutions – employees of schools and instructional institutions, assistant, scientific and non-scientific employees included, as well as the associated libraries belonging to the educational institutions fall under educational use.
No, this does not serve an educational purpose.
No, although PhD students can also belong to the circle of people in an ‘educational context’, a public conference is not a related teaching event for which a work can be used.
Pursuant to Joint Tariff 7 sect. 7.4., complete radio and television programmes may be saved and archived on an internal password-protected school platform and then made available to the employees of the educational institution within the scope of private use for educational purposes as long as radio or TV are the only sources, i.e., no CDs or DVDs with the corresponding programmes are commercially available (c.f. the information sheet ‘Net-based use of complete radio and TV programmes by schools’ for further information).
No, without the consent of the author or the owner of rights only incomplete copies of CDs and DVDs may be copied for private use for educational purposes (Art. 19 para. 1 (b) in conjunction with Art. 19 para. 3(a) CopA). Excerpts are therefore permitted.
The situation is different in the case of private use in the personal sphere or in a private circle; here, complete copying of CDs and DVDs is permitted (Art. 19 para. 1(a) in conjunction with Art. 19 para. 3(a) CopA).
- libraries and other institutions accessible to the public may copy works (also completely) to secure and preserve their collections if these copies are not made for financial gain (Art. 24 para. 1bis CopA).
Yes, as long as he limits the access to the digital reserve list to his students in the case of the use of third-party works (password) and takes the scope of the work into consideration, depending on the type of work. The professor may make his own works freely available as long as he has not given up the rights to them.
Yes, as long as he himself falls under private use for educational purposes (Art. 19 para. 1(b) CopA); in this case, he may use a third party, a library, to make the copies for him (Art. 19 para. 1(b) in conjunction with Art. 19 para. 2 CopA). However, it means that the library may only copy excerpts from the teaching material.
The archive can refer to private use for educational purposes (Art. 19 para. 1(a) CopA) or JT 7 when it is a part of an educational institution. In this case, the archive can make the newspaper article collection available in analogue as well as in digital form to the members of the educational institution concerned. NB: the collection must be put online on a password-protected platform; it may not be made freely available on the Internet.
The archive can refer to professional use for internal information and documentation (Art. 19 para. 1(c) CopA). It can also make the collection available in analogue or digital form; however, only internally for its employees’ use.In both cases of private use, complete newspaper articles may be copied, unless a particular article has not appeared in a magazine and can only be purchased in single copies online. Then this individual article is considered to be a sales unit and may only be copied incompletely pursuant to Art. 19 para. 3(a).