In many cases, it will be impossible to publish a work for the first time without the help of third parties, e.g. PhD students who cannot publish their PhD thesis without the help of a publishing house. However, the right of first publication as such cannot be assigned to a third party. However, with the consent of the author, a third party (e.g. a publishing house) can exercise the first publication according to the author’s instructions whether, when, how and under what author’s designation the work should be published. In this regard, authors can in particular assign their property right – above all the right of reproduction – to a publishing house. They can also only permit the publishing house to ‘execute’ the rights of first publication, i.e. grant the publishing house a right to use or a licence to the work. The authorisation given by authors to a third party to publish a work for the first time is described in a contract between the author and a third party.
4.1.1 Right of first publication
The author has the right of first publication. This means that only authors may decide whether, when, how and under what author’s designation their work should be published for the first time (Art. 9 para. 2 CopA).
The work can be published in any way, also electronically on the Internet, via e-mail, fax or mobile phone. It is also not mandatory for the public to take notice of the work; it is enough for them to have the possibility to do so.
The first publication has far-reaching consequences for authors:
- Once the authors have published the work, the publication cannot be reversed (irrevocability of first publication).
- In addition, after the publication, the authors must accept the legal exceptions to the (permitted) use of their work derived from the limiting provisions (Art. 19 to Art. 28,Art. 11 para. 3 and Art. 12 para. 3 CopA).
No, pursuant to Art. 9 para. 3 CopA a work is only considered to have been published when it is made available to a larger number of people outside the private circle of the author. The study group is a group of students that are closely connected to each other in their field of study. The student can still ‘control‘ this group of people. The essay has therefore not been made available to a larger number of people (Art. 19 para. 1 (a) CopA) and has thus not been published.
This question can unfortunately not be answered with a clear ‘yes’ or ‘no’. According to current trends, one probably has to assume that it was published for the first time as the student makes her homework available to a larger group of people. Everybody should know by now that Facebook users have virtually no control over the sharing of their posts. Even if the student only makes her homework available to a private circle (e.g. a selected group of Facebook friends), there is no guarantee that the Facebook friends in question will not share the homework with other people who are not known to the student.
The doctoral student – only the author has the right to decide whether, when, how and under what author’s designation the work is published for the first time. She cannot assign the right of initial publication to the publishing house, as this is her non-assignable moral right. The publishing house ‘helps’ the doctoral student with the publication in that the doctoral student agrees in a contract with the publishing house to give her dissertation to the publishing house for reproduction and distribution.