With regard to the use of a work, while every use is permitted by private use in the personal sphere or in a private circle and by private use for educational purposes, only copying is permitted in the case of professional use (however, with the exception that in-house distribution is also permittedwith the exception that in-house distribution is also permitted).
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5.2.3 Professional use
Professional use pursuant to Art. 19 para. 1(c) CopA includes copying and distributing these copies within a business for the purpose of information and documentation. Professional use is a statutory licence. Thus, the user does not need anyone’s consent to use the work. However, use pursuant to Joint Tariffs 8 and 9 must be remunerated (Art. 19 para. 1(c) in conjunction with Art. 20 para. 2 CopA).
Who benefits from professional use?
Within the three limiting provisions of private use (Art. 19 para. 1(a, b and c) CopA), professional use includes the broadest possible circle of users. The law lists public administration, institutions, commissions and similar organisations. Prevailing opinion goes beyond this and interprets the term ‘business’ broadly. Thus, this includes public and private businesses and freelancers, irrespective of their legal form (e.g. public agency, Ltd., association or sole trader), as well as other unions of people, irrespective of whether they are even organised in a legal form (e.g. an interest group). It is decisive that these have an internal area so that it is possible to distribute copies to employees – also to those in a branch in Switzerland, for example (c.f. Gasser, Der Eigengebrauch im Urheberrecht, 1997, 91 et seq.).
- Examples of businesses pursuant to Art. 19 para. 1(c) CopA: libraries, associations, interest groups, commercial enterprises, etc. even schools, universities and other educational institutions; however, they can usually base themselves directly on Joint Tariff JT 7 with regard to their professional use.
What is permitted?
Unlike with private use in the personal sphere (Art. 19 para. 1(a) CopA) and private use for educational purposes (Art. 19 para. 1(b) CopA), not every use of a work is permitted, but rather only copying. However, the Federal Court recognises that in-house distribution of these copies must logically also be permitted (BGE 133 III 478). This includes storage in an in-house network and the corresponding in-house publishing. The copying of works not only relates to text works and pictorial works but includes all types of work pursuant to Art. 2 CopA; for example, also radio and television programmes.
However, the purpose is limited to internal information and documentation; therefore, playing a documentary film at a social corporate event does not fall under this.
- The following is permitted: publishing printed copies at an in-house event, sending a copy as an attachment in an e-mail, saving text, images, film, etc. in an in-house network and making it available.
- The following is not permitted: issuing printed copies at a public company event, sending copies to people outside the company, making copies available online on the Internet, or making works publicly available in a printed annual report, for example.
In the case of professional use, the scope of the copying differs, depending on the type of work – basically, the statutory limitations for private use apply (Art. 19 para. 3 CopA); however, the Joint Tariffs (JT) (JT 8 and 9) permit more than the law to some extent. In detail, the following scope applies in the case of professional use when copying the listed types of work:
- books and other text works: only excerpts (Art. 19 para. 1(c) in conjunction with Art. 19 para. 3(a) CopA)
- newspapers and magazine articles, essays: complete copies (BGE 140 III 616)
- sheet music: only incomplete copies
- paintings, photos, graphics, sketches and other visual art: complete copies
- radio and TV programmes: only incomplete programmes
- music from CDs or films from DVDs: incomplete copies (excerpts)
Yes, a research group can fall under professional use. It is decisive that the research institution is an institution within the meaning of Art. 19 para. 1(c) CopA. It is irrelevant whether it is a commercial business or a university, or another educational institution.
When the research group falls under professional use, the members may make copies (printed and digital) and distribute them to other members.