ETH Library's Documentary Service Falls Under Fair Use Provision

Author:Dr. Roger Staub
Profession:Froriep
 
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In a recent decision, the Federal Supreme Court clarified various issues that are important for the interpretation of the fair use provision of art. 19 of the Swiss Copyright Act. Art. 19(1) allows the reproduction of copies of a copyright protected work inter alia for private use and for use by enterprises and public institutions for internal information and documentation purposes. Para. 2 of the provision says that those who benefit from this fair use exemption are allowed to have the copies made by a third party. Apart from copies for purely private purposes, however, it is not allowed to make complete or extensive reproductions of copies obtainable in commerce (art. 19(3)(a) Copyright Act).

The library of the Swiss Federal Institute of Technology in Zurich (ETH) relied on these fair use provisions with respect to its documentary service. As part of this service, upon request of any of its customers, the library scanned parts of the journals or books it has in its library, copied those scans and sent the copies either by email or by ordinary mail to its customers. The customers paid for this service. Certain publishers sued the library and claimed copyright infringement. They argued that the library service did not fall under art. 19(2) of the Copyright Act and that they made complete reproductions of copies that are available in commerce, since the publishers offered their content article by article for sale, namely on the internet. Whereas the Cantonal Court had admitted the complaint, the Federal Supreme Court denied that there was a copyright infringement.

First, the Federal Supreme Court rejected the position taken by the Cantonal Court that art. 19(2) Copyright Act only covered the reproduction of the works but not the sending of the reproductions to customers. It argued that only the reproduction...

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