Ownership and transferEligible owners
Who is the owner of a copyrighted work?
The creator of a work is the owner of a copyrighted work. Because of the legal requirement for a work to be a unique, intellectual creation an author can only be a natural person, not a legal entity. For the authorship, it does not matter whether the author has legal capacity or not; therefore, children and mentally disabled people can be authors.Employee and contractor work
May an employer own a copyrighted work made by an employee?
The Copyright Act only regulates the allocation of rights between employer and employee in copyrightable works for certain cases (eg, software). In all other cases, the general rule would apply whereby the copyright remains with the author (the employee) and the employer can only be successor in exploitation rights.
Section 40b of the Copyright Act provides that if a computer program is created by an employee in the performance of his or her employment duties, the employer shall enjoy an unlimited right of utilisation in the work unless the employer has agreed otherwise with the author of the program. This provision only applies to software; however, there are several legal opinions that would also apply these rules by analogy to other works that have been created by employees in the performance of their employment duties.
In addition, the Austrian Supreme Court has concluded, from the employment of employees in certain functions with the purpose of creating of works (eg, marketing departments) for the benefit of the employer, that the implicit granting of exclusive exploitation rights in the works that have been created in the performance of the employment duties can be assumed, unless an agreement to the contrary exists.
May a hiring party own a copyrighted work made by an independent contractor?
The hiring party does not acquire the copyright in a certain work, considering that this is not transferable, however, he or she is granted (implicitly) certain exploitation rights, if the respective commission makes this necessary. The Austrian Supreme Court has stated that according to sections 26 and 33 of the Copyright Act, the scope of the rights that are granted to the hiring party (the licensee) cannot be broader than required for the purpose of the intended use of the work.Joint and collective ownership
May a copyrighted work be co-owned?
Co-ownership is admissible under section 11 of the Copyright Act. The author, who has created a work together with a third party, and thus, who has worked together consciously with the purpose of creating a work, is qualified as co-author. Further, the respective work must form an indivisible whole. Joint authors share copyright. Hence, any alteration or exploitation of the work requires the consent of all co-owners.Transfer of rights
May rights be transferred?
Copyright and moral rights cannot be transferred or be subject of a legal succession. Exploitation rights, however, can be subject to licence agreements, which assign the right to use the copyright protected work in a certain manner.Licensing
May rights be licensed?
Exploitation rights can be licensed to another individual person or a legal entity. There are two types of licensing according to law: section 24 of the Copyright Act regulates that the author may authorise others to non-exclusively use the work by some or all of the methods of exploitation reserved to the author under sections 14 to 18a (authorisation to use); further, he or she may also grant to other persons the exclusive right so to do (right to use), which entitles the licensee to prevent the rights holder, as well as third parties, from using the work in the licensed scope.
Are there compulsory licences? What are they?
A compulsory licence only exists for audio recording (section 58 of the Copyright Act). Where the entitled person has permitted another person to reproduce and distribute a musical work on an audio medium, any manufacturer of such medium may require the entitled person, once the work has been published, to grant him or her the same uses of the work for equitable payment; where the manufacturer has his or her place of residence or principal place of business abroad, this shall apply, subject to international treaties, only on condition that manufacturers having their place of residence or principal place of business in Austria are treated, in the country concerned, in approximately the same way, or at least in the same way as manufacturers having their place of residence or principal place of business in that country. This provision also applies to works of language combined with a musical work, where the rights holder has permitted another person to reproduce and distribute the work of language, so combined, on audio media.
Are licences administered by performing rights societies? How?
Some types of exploitation rights of certain works (depending on the scope of the collecting society’s permission) are administered by collecting societies (performing rights societies) upon explicit request of the author. Hence, there is no obligation of an author to license a work through a collecting society (membership is not mandatory).
Their main task is to collect remuneration for the rights holders and distribute it to them. Collecting societies make rights to works and related rights in the sense of copyright law available that provide users with the necessary authorisations against consideration or make other claims under the Copyright Act. The collecting societies conclude, with the rights holders at their request under appropriate and consistent conditions, a contract for the perception of the rights and claims that belong to their field of activity (management agreements).
On this basis, the collecting societies grant permission to use the works under appropriate conditions and for an adequate fee.Termination
Is there any provision for the termination of transfers of rights?
With regard to the granting of a licence on exploitation rights, the parties are free to agree on the duration of the licence (an indefinite term is possible) and the reasons for terminating the agreement. The parties can agree on a termination at will (a good cause must justify the extraordinary termination), but also on a termination without cause but under adherence to a certain notice period.
Further, the Copyright Act provides certain rules concerning the termination of exploitation rights. Where the right to use a work is not exercised in accordance with the purpose for which it was granted, or is exercised only to an extent so inadequate as to prejudice important interests of the author, the latter, provided he or she is not at fault, may rescind the contract prematurely insofar as it relates to such right to use. The right to rescind the contract for these reasons may not be waived more than three years in advance.Recordal
Can documents evidencing transfers and other transactions be recorded with a government agency?