Facts
The Swiss Federal Institute of Technology Zurich (ETH Zurich) operates a document delivery service where it scans or copies excerpts from journals or anthologies available in its library upon request of an ordering party and sends them to the ordering party by email or post. The plaintiffs, who are active in the field of publishing scientific, technical and medical journals, are of the opinion that this document delivery service infringes copyrights and is therefore inadmissible. ETH Zurich, on the other hand, takes the view that its service falls within the legally permissible private use.
Considerations
The Federal Supreme Court upholds the appeal of ETH Zurich and dismisses the action. It comes to the following conclusions:
- The transmission of a permissibly created copy to the person entitled to private use by sending it by post or email is permissible under Art. 19 para. 2 CopA.
- For the assessment of whether a complete or largely complete reproduction of a commercially available work copy is present, the specific copy used is decisive, not the availability of the copied content in another form.
- The private…