126.96.36.199.1 The use of works for personal purposes or within a group of closely connected people
According to art. 19 para. 1 (a) CopA, the use of a work is permitted, including in the case of social media, for personal purposes or within a group of closely connected people, such as parents or friends. This copyright restriction primarily covers the use of a work by a person for purely personal reasons. This means that a person has the right to consult a work available on social media when they are only using it for themselves (Ruedin P. E. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 183). For example, personal use covers consulting works such as a work on YouTube for the user’s own account.
The use of a work within a group of closely connected people such as parents or friends is also permitted. However, the idea of “closely connected people” should be interpreted in a specific way (Salvadé V., Droit de l’auteur et technologies de l’information et de la communication [Copyright and Information and Communication Technologies], Schulthess, Geneva, Zurich, Basel, 2015, p. 10). If this definition refers to family members and those living under the same roof on a long-term basis, a mere social connection like that between colleagues in a company is not a sufficiently close relationship. The group of friends referred to in Art. 19 para. 1 (a) is therefore limited to people who know each other well (Ruedin P.E. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 184).
A Facebook user who uploads a protected work without the author’s permission and without restricting the group of recipients is violating the right to make the work available because they are permitting the public to access the work at any time. Resorting to social media in order to use a work within a private group of people is not problematic because all forms of use are covered by this exception. However, in this example, the group of recipients of the work made available goes beyond a group of closely connected people.
The question is further complicated when the user only makes their publication visible to the narrower group constituted by their “friends”. The idea of “friends” as defined within the context of Facebook is too vast to fall within the definition of a group of closely connected people as stipulated by the law and case law (AGUR12 final report of 28 November 2013, p. 81). This means that these two ideas are not exactly one and the same thing. The user publishing content for their friends alone to see risks not enjoying all the protection offered by the exception regarding use for personal purposes.
The user of a network such as WhatsApp is in a different situation as they have more control over choosing who to share content with. This format allows the user to choose recipients which perfectly fit the description of a “group of closely connected people”.
Caution should therefore be exercised, and it makes sense to establish whether the exception regarding use for personal purposes actually applies based on the potential recipients in question (Rebetez M., Internet, les réseaux sociaux et le droit d’auteur [Internet, Social Networks and Copyright] p. 55).