The Austrian government has recently published a draft bill reforming the national copyright law. Amongst the proposed amendments, two changes are particularly to be noted. First, an ancillary copyright for newspaper and magazine publishers will be introduced. Secondly, private copying levies for data storage media shall be implemented. Both topics have received broad attention amongst the affected peer groups for quite some time already.

Further aspects the bill touches upon are the secondary exploitation right for copyright holders and the extension of the quotation right. Moreover, the current “cessio legis” rule is under revision. As a matter of background, today the Austrian copyright law furnishes film producers with truly inclusive rights to the films they produce. The CJEU challenged that regime in its well-known Luksan verdict in February 2012 (Case Ref.: C-277/10). Thus, it is for the Austrian legislator to implement new provision that adequately reflect the principles of EU law.

It is the aim to pass the bill over the summer months and to enact the new law 1 October 2015 if possible.

Ancillary Copyright for Publishers

By introducing an ancillary copyright for publishers Austria is following the examples of Germany and Spain. Both countries already implemented the exclusive right of publishers to make their works or parts of it available to the public. Thus, the rightholders can charge news aggregators for publishing even small pieces of articles (so called snippets). Since the introduction has already been fiercely discussed in Germany, it is not surprising that the very similar regulations in the draft also provoke sustainable criticism.

Unlike in Germany, however, the Austrian draft provides a more specific definition of the privileged publishers and – which is more surprising – it does not provide the “snippet-exception”. According to § 87f (1) of the German Copyright Act the smallest pieces of an article do not fall under the ancillary right. In order to avoid the difficulties Germany has with the categorizing of those snippets, the Austrian draft does not contain any such exception.

Private Copying Levies for Storage Media

The bill provides also for new levies for storage media such as notebooks, smartphones or blank storage media (e.g. CDs and DVDs). It has been a long discussion on whether the current law on private copying levies also covers hard drives and similar multifunctional storage media. After a decision by the national Supreme Court of Justice affirmed the question, the Austrian law had to be adapted. The government refers in this context also to the several decision by the European Court of Justice like Padawan (Case Ref.: C-467/08) and Copydan (Case Ref.: C-463/12).

Comment

As mentioned above, the bill is in the process of being enacted. Parliament should sit over it and debate the proposed changes before the summer break. If the anticipated schedule can be met, the draft will enter into force in October 2015. The introduction of ancillary rights for the publishers seems to walk along with the goals of the European Commission for Digital Economy and Society. Thus, there is indeed some movement on the copyright side right now.