Principle of the Country of Protection / Austrian Copyright Law

The copyright law of a state applies only within its borders. Hence, for example, the provisions of Austrian copyright law apply only on Austrian national territory and those of  German copyright law are applicable only on German territory. This is due to the fact that the   international law of copyright and related rights is based on the principle of territoriality. According to this principle, the protective reach of national copyrights is limited spatially to the territory of the state in question, with the result that authors do not acquire uniform, globally valid copyright. Rather, they can benefit from the copyright protection that applies in each country. Hence a whole bundle of territorially limited national copyrights are available to them.  

The limited reach of national copyright provisions also has conflict-of-laws implications  insofar as the law which is applied is that of the country for whose territory protection is claimed. This is referred to as the authoritativeness of the law of the protecting country or the principle of the country of protection  (lex loci protectionis). It follows from this principle that the coming into existence, the substance, and the subsistence of protection rights are governed by the legal system of the country for whose territory copyright protection is sought. However, because of international treaties and conventions on copyright and the considerable headway that has been made in harmonising copyright law, an (almost) uniform level of protection applies, particularly in Europe. Therefore, to a certain extent at least, the information on German copyright law applies also to copyright legislation in Austria. Nonetheless, there are a number of significant - and sometimes major - differences between the legal systems of the two countries.

The legislation governing copyright in Austria is the Federal Law on Copyright in Works of  Literature and Art and on Related Rights, in short the Copyright Law (UrhG). This law protects the rights of authors in their works and related rights. While copyrights as such can be transferred by will or inheritance, they are not otherwise transferable (Section 23 UrhG). However, authors can grant to others the right to use their works in some or all of the ways laid down in Sections 14 -18a UrhG.

What does copyright protect?

Copyright protects works and other similar activities. Rights and obligations under copyright law hinge primarily on the existence of a work. In Austria, works within the meaning of copyright law are "original intellectual productions in the fields of literature, music, art and cinematography" (Section 1 of the Austrian Copyright Law (UrhG)).

An original intellectual production is any perceptible result of intellectual activity that displays a degree of individuality and level of creativity which sets it apart from the commonplace. However, the required standards of individuality and creativity are very low and are deemed to be fulfilled even if the work displays only a minimal degree of originality. As a result, even simple and trivial achievements are eligible for copyright protection irrespective of their aesthetic, scientific or other value provided they can be classified as literature, music, art or cinematography. Adaptations (Section 5 UrhG) and collective works (Section 6 UrhG) are also protected.

What are related or neighbouring rights?

Related or neighbouring rights protect artistic, scientific, or commercial achievements that are not protected by copyright in the narrow sense of the word because they lack individuality and creativity. These related rights cover recitations and performances of works of literature and music (Sections 66 to 72 of the Austrian Copyright Law (UrhG)); the production of photographs and moving pictures (Sections 73 to 75 UrhG); the production of audio recordings (Section 76 UrhG); the transmission of sounds or images by broadcasting (Section 76a UrhG;); the publication of previously unpublished works in which the copyright has expired (Section 76b UrhG); and the creation of investment-intensive databases  (Sections 76c to 76e UrhG). These related rights differ from copyright in the narrow sense in that the term of protection of related rights is shorter and the scope of application is narrower.

What rights does copyright grant to the author?

Copyright grants a bundle of moral and economic rights to the author. Moral rights protect the author's intellectual and personal relationship with the work, while exploitation rights guarantee his or her participation in its commercial exploitation.

Term of protection of works

Copyright protection begins at the moment of creation of the work. No registration or other action is required. Copyright terminates 70 years after the death of the author, or in the case of joint works, the] last surviving joint author (Section 60 of the Austrian Copyright Law (UrhG)). In contrast to commercial protection rights (especially trademark, sample, and patent rights), the term of copyrights and related rights cannot be extended. A work, the term of protection of which has expired, can be freely used by others. For example, it can be printed, adapted, reproduced or made available on the Internet at will. Nonetheless, caution must be exercise in this regard as several rights holders with rights of different duration may be involved in the work. Take a piece of music, for example. The copyrights of the composer or the lyricist may have expired long ago, while the related rights of the musicians and the producers may still be extant if the piece is a new interpretation. In the case of texts that have been translated or otherwise adapted, not only must the term of protection of the author's rights be observed, but also possibly the rights of the translator or adapter. With regard to the term of protection of photographs, a distinction must be made, where appropriate, between the rights of the photographer and the rights in the photographed object. Only when all protection rights in an object have expired can it be freely used in its entirety.

When calculating the term of protection, the year in which the event that determines the beginning of the term - in this case the death of the author - occurs is not counted. In other words, terms of protection always begin on the first of January of the following year.

 

Unprotected works

Works that are not protected by copyright and are thus freely usable constitute unprotected works (Section 7 of the Austrian Copyright Law (UrhG)). Such works include laws, orders, official decrees, public notices, court decisions and other official works produced for official use. However, they do not include materials such as examination questions, sample solutions, lecture notes etc. published by higher education institutions or other bodies entrusted with carrying out state examinations.

Other categories of material that are not eligible for copyright protection include ideas, thoughts, concepts, methods, and game rules. This is because copyright protects only the fixed expression or manifestation of intellectual content but not the intellectual content as such. Hence, for example, ideas for a course or a research project, a didactical concept, or prerequisites for the successful completion of a course are not eligible for copyright protection. Nor are scientific findings and teachings such as dogmas and formulae, scientific or didactic methods, laws of nature, general knowledge, individual chords, sounds, a style, a verse form, geometric symbols, inspirations from nature, and saga material. Hence, all these materials can be freely used. The same applies to actual circumstances and events. Therefore anything produced by nature or history is not protected by copyright. This includes biographical material, historical events, current events, factual news, laws of nature and measurement results. Accordingly, a scientific work is never eligible for copyright protection on the basis of the historical, economic or social data, facts and theories presented therein because this material is always freely usable. Rather, copyright protection accrues only to the concrete representation, structure, selection of facts and the line of argument, in other words to the elaboration as such.

Authorship / How copyright protection arises

Who is the author? And how does copyright protection arise? These questions are answered briefly and to the point in Austrian Copyright Law (Section [§] 10 (1) UrhG) pursuant to which the author of the work is the person who created it! Two statements can be deduced from this "creator principle":

First, the author is invariably the person who directly produces the work. This also makes clear that the author is always a natural person and can never be an animal, a machine, or a legal entity such as a university or a company because none of these can engage in the intellectual activity that gives rise to copyright. However, a legal entity can acquire rights to use the works of others and thereby become the holder of derived rights of use in a work or authorisations to use a work. Nonetheless, the natural person who created the work always remains the author. This also applies to a ghostwriter who writes on behalf of another person. The person who commissioned the work and under whose name it appears cannot become the author because he or she did not make a substantial creative contribution to it. The ghostwriter continues to be the author and to have claim to the copyrights. What is more, he or she cannot waive these rights (Section 19 (1) UrhG). What he or she can do, however, is to legally forgo being designated as the author (Section 20 (1) UrhG).

Second, according to the creator principle, copyright protection arises by law and thus comes into being automatically when the work is created. Hence neither registration with a public or private agency nor a sovereign act are called for. The advantage of the fact that copyright arises automatically is that a work is immediately and effectively protected without any additional expense or formal effort on the part of the author.

When two or more persons are involved in the creation of a work

Joint authorship

If two or more persons have jointly created the work in such a manner that the individual contributions cannot be exploited separately, the provisions regarding joint authorship apply  (Section 11 of the Austrian Copyright Law (UrhG)). Joint authors are, for example, the authors of a jointly written essay. Joint authorship can also arise when copyright devolves on two or more heirs after the death of the creator of the work (Section 23 (4) UrhG). The combination of works of different kinds - for example a piece of music and a poem - does not in itself give rise to joint authorship (Section 11 (3) UrhG).
If joint authorship exists, all joint authors must agree to any exploitation of the work, for example to its being made available via the Internet, unless otherwise agreed among themselves. In order to prevent the exploitation of a work being made impossible because one joint author refuses to consent to it, Austrian copyright law provides for the institution of legal proceedings to obtain this consent where this refusal is unjustified (Section 11 (2) sentence 3 UrhG). Each joint author is separately entitled to institute proceedings for breach of copyright (Section 11 ( 2) sentence 1 UrhG).

Authorship of contributions to a collective work

A divisible combination of works, for example a collective work (Section 6 UrhG) that combines the contributions of individual authors in one volume, does not give rise to joint authorship. Accordingly, unless otherwise contractually agreed, the author of an individual contribution has the right to decide independently of the editors and the authors of the other contributions whether and how his or her contribution is to be exploited. The same applies, for example, when a song text is set to music. Unless otherwise agreed, the author of the text is entitled to commission a new score without the consent of the original composer and the composer has the right to independently commission new lyrics.

Assistants and mentors

A distinction must be made between authors or joint authors on the one hand and assistants or people who merely give suggestions on the other. As only a person who has made a substantial creative contribution to a work can be deemed to be an author, suggestions and tips provided, for example, by a thesis supervisor do not suffice to establish joint authorship. This is also the case when the supervisor suggested the topic of the thesis. A person who gives tips or makes suggestions is not an author. Likewise, the purely routine activities typically performed by research assistants or student assistants, for example literature searches, the production of indices and bibliographies, the elaboration of footnotes, and copy editing do not constitute a claim to joint authorship. However, it should be noted that not only are university members entitled to have their names mentioned in connection with a work when they are authors or joint authors, but also their names must be mentioned when they have merely made an independent scientific or artistic - not necessarily creative - contribution to the work.

Rights holders / Authors in employment or service

The transferability of rights of use constitutes the legal basis for the fact that publishers, recording and film studios, performance rights societies, universities etc, which cannot be authors per se, can exploit works protected by copyright. Hence, in practice, the author and the rights holder are frequently not one and the same person. Especially in employment, service or contractee-contractor relationships where persons are paid to create works, it is customary that the authors are not entitled to dispose freely of these works for exploitation as the exploitation rights therein devolve on the employer or commissioning person/organisation.  Except in the case of computer programmes and database works (Sections 40b ff., 40f ( 3)  UrhG), the Austrian Copyright Law does not contain any special provisions in this respect. Hence, employers or commissioning persons/organisations are advised to have exploitation rights contractually granted to them. However, in the absence of an explicit agreement, a tacit transfer to the employer or commissioning person/organisation of exploitation rights in works created in fulfilment of contractual obligations is assumed provided the creation was necessary to fulfil the purpose of the contract. However, a tacit granting of rights cannot be assumed where a work was not created in execution of duties under a contract of employment or service or in performance of an order placed by a contractee.

Clauses transferring exploitation rights are also found in the standard employment contracts of higher education institutions. If no such agreement exists between the institution and the individual scientis in this regard, and if the latter creates a work such as a powerpoint presentation or an e-learning unit, he or she should check whether an obligation to produce the work in question transpires from the legal relationship on which the employment contract  is based. If this is so, as, for example, in the case of a project assistant hired specifically to generate e-learning content, a tacit transfer of exploitation rights to the institution is to be assumed, with the result that the ownership of rights in the work, and hence also the right to dispose thereof, devolve on the institution. In contrast to project assistants or other members of the intermediate level academic staff with little discretionary powers, a tacit transfer of exploitation rights to the employer cannot be assumed in the case of university professors, lecturers etc. in the absence of an explicit agreement. This is due to the fact that freedom of scientific research, which is guaranteed in principle, requires that scientists must be able to dispose independently of the results of their work and decide themselves whether and in what way their works are to be published or otherwise exploited. Hence, in the absence of an exploitation clause in the employment contract of, for example, a professor, a higher education institution must conclude a separate licence agreement if it wishes to exploit content produced by him or her. This also applies to works that research assistants, student assistants etc. create outside the framework of the execution of their duties. If, for example, a university wishes to make the doctoral dissertations or master's theses of their employees or students accessible in its own repository, it must acquire the necessary rights by means of a licence agreement with the author. If an author transfers all exploitation rights exclusively, he or she no longer has any rights of disposal. These rights are held by the transferee(s). If the author licenses, or has licensed, the content under an open-source or open-access licence such as Creative Commons, this licence is then invalid.

Authorisation to use a work / Right to use a work

In the parlance of Austrian copyright law "authorisation to use a work" refers to cases where exploitation rights are not transferred exclusively (Section 24 (1) UrhG). This is a relative right. The author is free to authorise numerous persons to use the work. The holder of such an authorisation is entitled to use the work non-exclusively in the manner laid down in the authorisation. In other words, the author and other authorisation holders are also entitled to use the work. Examples of authorisations to use a work are recitation-, performance-, broadcasting-, and standard software contracts.  

Where exploitation rights are transferred exclusively, Austrian copyright law refers to "the right to use a work" (Section 24 (1) sentence 2 UrhG). This is an absolute right. The author can grant a right to use a work to one person/entity only. The holder of a right to use a work is entitled to use the work to the exclusion of other persons including the author in the manner permitted in the contract concluded with the author. Examples of agreements with respect to rights to use a work are administration agreements with performance rights societies, publishing agreements, and individual software contracts. Separate agreements can be concluded in respect of individual types of exploitation. For example, it is possible to acquire an exclusive right to exploit the work online (making available right, Section 18a UrhG) and a non-exclusive authorisation to distribute the work on physical media (right of distribution, Section 16 UrhG).

Links for further reading

Urheberrechtsfragen beim Einsatz von Multimedia an Hochschulen.
[Copyright Issues Relating to the Use of Multimedia in Higher Education Institutions] (A practical guide taking the University of Vienna as an example.)

Österreichische eLearning-Rechtsportal [Austrian eLearning-Law Portal]

Knowledge Base Law Copyright

 

Adaptation of content to Austrian law: Dipl.-Jur. Seyavash Amini
(Please note that the content presented here is provided for information purposes only and does not constitute legal advice.)