In accordance with Art. 9 para. 3 CopA, the author must be the one to disclose their work. This provision is violated if parts of a work are published without the author’s knowledge and these parts have an individual character (Art. 2 para. 5 CopA). Beyond this violation, the work is not deemed to have been disclosed if it was done without your consent.
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188.8.131.52 Right of disclosure
According to Art. 9 para. 2 CopA, the author “has the exclusive right to decide whether, when, how and under what author’s designation their own work is disclosed”. Disclosure of a work is when it is made accessible for the first time to a group of recipients that the author can no longer control. Thus, making a work available on social media essentially constitutes disclosure (Reusser S., L’admissibilité des hyperliens en droit d’auteur [Admissibility of Hyperlinks in Copyright Law], Helbing Lichtenhahn, Basel, Faculté de droit de l’Université de Neuchâtel, 2014, p. 136). Disclosure must be by the author or a person authorised by the author. A work has therefore not been disclosed when the user does not have the author’s permission (Philippin E. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 79).
A work is deemed to have been disclosed when the author loses control of the group of people who have access to their work. A work which has been published by the author on their home page without any restriction regarding access to the work can be considered to have been disclosed. However, if the friends constitute a select group, this is not considered to be the same as disclosing your work because the work remains within a group of closely connected people. Therefore, anyone subsequently disclosing the work will require the author’s permission.
Publishing a work when the author has not given their permission is a violation of their right of disclosure. This is punishable under Art. 67 CopA. The author’s property rights would also be breached.