Uploading a protected work to social media
When the user uploads a protected work to social media without restricting the group of recipients, for example a video on YouTube, they are in breach of copyright.
7.4.2.3 The right to make something available
In accordance with art. 10 para. 1 (c), the author has the right, in particular, “to recite, perform or present a work, arrange for it to be seen or heard somewhere other than where it is being put on or make it available directly or through some medium in such a way that anyone may access it from a place and at a time individually chosen by them”. The author therefore has the right to decide to what extent the work will be communicated to third parties.
As regards social media, the right to make something available is particularly affected by this. This right is concerned with “any act by which a work can be made perceptible at the request of the user via telecommunication networks, directly or indirectly, by storing it for consultation” (Cherpillod I. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 88).
This means that the user of a work who publishes a work on a social network is in violation of the right to make something available as soon as other users are able to call up the work in question from a database whenever they want (Cherpillod I. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 88).
On April 1, 2020, the new Swiss Copyright Act (CopA) will enter into force and bring a number of changes. We will do our best to update this page as soon as possible.
GOOD TO KNOW
FAQ
7.4.2.3-1: Can I publish a colleague’s article on Wikipedia since the licences are “free”?
No, the authors of the works contributed to Wikipedia decide to place their works under a CC-BY-SA licence, which allows users to share and modify the works provided they cite their source and place the results under the same licence. Just because you have a copy of the work does not permit you to bypass the exclusive rights of its author.
7.4.2.3-2: I want to create a WhatsApp group for my students to make it easier to share documents. Does this constitute making something available?
Yes, by sending your students a work via WhatsApp, you are making the work perceptible to them and that constitutes making something available. When the work is copied to the device of the recipient, this constitutes reproduction. However, this will be authorised on the basis of it being private use. The exception relating to use for educational purposes may also apply and therefore permit things to be made available.
7.4.2.3-3: One of my favourite authors has published a work on the Internet which anyone can access. Can I repost it on my Facebook page or do I need to ask for their permission?
A simple link to the site where the work is hosted is legal as this does not constitute making something available. Putting a copy of a work online on a social network, however, does constitute making something available and is therefore protected by copyright.
7.4.2.3-4: I want to retweet some content, is that making something available?
Everything depends on the content in question. Some tweets cannot be considered to be works within the meaning of the CopA. It is actually difficult to establish the individual character of a piece of content in a tweet which is limited to 140 characters. However, you still need to be careful. Many tweets and parts of tweets can be deemed to be works, especially when they contain files such as GIFs, photos or videos. Tweeting these counts as making something available.