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5.4 The temporary copying of a work
The author has the exclusive right to produce copies (Art. 10 para. 2(a) CopA). Every type of copying, thus also temporary copying, which inevitably takes place during the transfer of data in the Internet (e.g. streaming, short-term up and downloads, etc.) or another network falls under copying pursuant to Art. 10 para. 2(a) CopA. The consent of the respective author is thus always required for the transfer of data and the resulting inevitable related temporary storage of data. However, that is not the sense and purpose of the Internet and would be completely impractical. Thus, the limiting provision permits – consent-free and free of charge – strictly temporary copying pursuant to Art. 24a CopA. However, this is only under particular conditions:
- Copies are transient (ephemeral) or are only incidental (i.e. the unintentional consequence of a technical procedure, e.g. in connection with browsing or caching) (Art. 24a (b) CopA).
- Copies represent an integral and essential part of a technical process, i.e. the copies must be technically necessary (copies for other non-technical reasons are not included) (Art. 24a (b) CopA).
- Copies may only serve the purpose of enabling the transmission of data in a network between third parties by an intermediary (e.g. provider, owner of an Intranet, etc.) or the purpose of lawful use of the work (there is a legal use when it is permitted by the authors or owners of rights, or by a limiting provision; for example, during the legal private download of music, intermediary storage of data takes place in the memory) (Art. 24a (c) CopA).
Copies may not have any independent economic significance. An independent meaning would exist if the copies could be used independently; e.g. if such a copy could be downloaded and re-used (Art. 24a (d) CopA).