Case: Using published illustrations in class

1) Is the content used in Switzerland?
This question is important to determine which national copyright law has to be applied. If Dieter teaches Anatomy in Bern and wants to use the set of illustrations during his classroom lessons, then we can say that the content is used in Switzerland. In this case, Swiss copyright law applies. However, the following considerations only apply to Dieter’s lessons held in Switzerland.

2) Is the content protected by copyright?
We have to determine whether the specific content is considered a work protected by Swiss copyright law (LDA). In order to be protected by LDA, the illustrations have to be of an individual nature (art. 2 I LDA). This can be the case even for scientific or technical drawings, pictures or illustrations (see art. 2 IId LDA). Scientific content must be arranged, created or presented in a way that can be considered as individual. The entire set of illustrations can be considered as a collection. If the collection is a creation of an individual nature with regard to their selection or arrangement, it is protected in itself, pursuant to art. 4 LDA. The collection can also be protected in itself if the illustrations are not considered as works under LDA.

3) Who is the rights holder of the protected content?
This question is important, as the rights holder has the right to grant his authorization to the use of the protected content and is entitled to claim compensation for it. Furthermore, it is fundamental to know if the author of the illustrations has transferred all rights to the publishing house. Depending on the rights assigned to the publishing house, the answer can vary. For the purposes of this case, we suppose that the author has signed a standard publishing contract and therefore transferred all rights exclusively to the publishing house. This means that the author is not allowed to publish or use the contents elsewhere without obtaining the agreement of the publishing house. Even if the author’s use of the protected content is covered by an exception (i.e. for teaching purposes), he has a contractual obligation with the publishing house. The use of the protected content by the author without the agreement of the publishing house can lead to conflict. Moreover, there are institutional regulations regarding the copyrights of materials produced by an employee. Eric might be in line with such regulations as he teaches in an education institution in Basel. Most of the institutions have regulations that automatically transfer all copyrights of materials created by employees to the institution itself.

4) How is the protected content used?
a) Eric makes a copy of the illustrations on a CD-ROM arranging them differently than the published collection and gives it to Dieter. If we assume that the illustrations are works described by art. 2 LDA, making a copy of the illustrations on a CD-ROM and giving it to another person is considered as a permitted use by copyright law (see art. 10 LDA). Because Eric (or the school) has transferred all the copyrights of the illustrations to the publishing house, he must obtain authorization from them (rights holder). If we assume that the illustrations are not works described by art. 2 LDA and that Eric doesn’t copy the same arrangement of the illustrations as the one published by the publishing house, making a copy of the illustrations on a CD-ROM is not considered as a use of copyright. In this case, Eric can give the CD-ROM to Dieter without obtaining authorization from the publishing house.

b) Dieter uses the set of illustrations for teaching purposes (that’s mean that the illustrations are object of the course and not only an ornament of it) object of the lesson are the illustrations) and therefore the use could be covered by the exception for teaching purposes (art. 19 Ib LDA), with some limitations. If we assume that the illustrations are works described in art. 2 LDA, LDA applies. Nevertheless, following legal standards, Dieter is not allowed to show all illustrations entirely, as they are commercially available (art. 19 IIIa LDA). If we assume that the illustrations are not works in the description of art. 2 LDA, Dieter can show each illustration in its entirety. Dieter cannot show all the illustrations if he presents them in the same way as the published collection, because this collection is protected and available on the market.

Printing the illustrations for classroom use
The same answer and restrictions as above apply. Printing some pictures for handing them out to the students in class (and therefore to a limited number of students), can be accepted under the legal license for teaching use.
Showing the illustrations with a projector in class
The same answer and restrictions as above apply. Including the illustrations in a PowerPoint presentation (or similar) and showing them in class, is permitted.
Sharing the illustration on a CD-ROM
Distributing the entire set of illustrations to anyone on a physical device, such as a CD-ROM, DVD-ROM or USB drive, is considered as a new publication of the illustrations, and therefore not permitted without permission of the copyright holder (the publishing house), which would likely include a fee.
Sharing the illustrations on the web
In principle, the illustrations cannot be shared in digital format on the internet without limits. If they are secured with a password that only students enrolled in the course can access , it is acceptable under legal license for teaching use within the restrictions proposed in art. 19 III LDA. In this case, in fact, the distribution over the Internet to a controlled circle of people equals classroom use. A “controlled circle of people” means that there is a limited number of people (students) that have a password for accessing the content. However, it could be a problem if a student accesses the web abroad and uses the pictures outside of Switzerland. In this case, the usage is no longer considered in Switzerland and it would require the authorization of the rights holder. For this reason, sharing illustrations over the web always involves risks and it would be safer to avoid this kind of usage. On the other hand, freely sharing the illustrations on the Internet without a password is not permitted, as this equals large-scale distribution and cannot be considered instructional use. In this case, an agreement has to be signed with the holder of the rights (the publishing house) which would likely include a fee.