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Financing, investment and government support
Does the government provide any incentives or support programmes to promote fintech innovation in your jurisdiction (eg, tax incentives, grants and regulatory sandboxes)?
Although the Austrian government recognises the potential of fintech as a driver of financial innovation, it does not yet offer a regulatory sandbox. Instead, the Financial Market Authority (FMA) has established a designated fintech contact point, with a view to transparency and clarity, that handles questions relating to:
- licencing requirements;
- the obligation to publish a prospectus;
- compliance and anti-money laundering regulations; and
- how FMA procedures are conducted and the costs involved.
The Ministry of Finance has established an advisory board and proclaimed that it aims to foster growth in the fintech sector.
Has the government concluded any international cooperation agreements to promote and facilitate the cross-border expansion of fintech businesses?
Financing and investment
What private financing and investment schemes are available and commonly used for fintech start-ups in your jurisdiction?
Aside from bank financing and venture capital, fintech companies may raise capital by way of initial coin offerings. During an initial coin offering, capital is usually collected in the form of virtual currencies. In return, the investors receive a coin or token that is linked to the company or project of the initial coin offering organiser. The coin or token can also represent an investment in a company – often a start-up – or promise a claim to a future profit to be earned.
If the coin or token represents a value that is tied to a project or company, the coin or token will typically have an intrinsic value. Thus, there is a significant risk that the FMA could assess such an initial coin offering or initial token offering as an offer subject to prospectus requirements under the Capital Market Act; although, the Capital Market Act and the Act on Alternative Financing provide for certain exemptions.
If the coin or token is classified as a financial investment within the meaning of the Securities Supervision Act 2018, an investment service subject to licensing may be given. In addition, a banking activity (issuing and managing means of payment) may be given if the generated coin can be used as a means of payment.
What forms of IP protection are available for fintech innovations?
The following categories of intellectual property will typically be relevant for fintech innovations:
- Computer programs are protected by copyright (as works of literature), provided that they are the result of the unique intellectual creation of their author. In addition to copyright law, protection may also be provided under utility model and patent law. However, software as such is unprotectable either in the form of a patent or a utility model. The legislature allows such protection of software if it is a ‘computer-implemented invention’ (ie, if it relates to a technical context).
- Databases can also constitute a particular intellectual creation as a result of the compilation of individual contributions into a unified whole. Such compilations are protected by copyright.
- Individual contents contained on web pages in word, picture or sound are protected by copyright if they are the result of the unique intellectual creation of their author.
- Websites can also enjoy copyright protection under the same preconditions as described above. If the content of several web pages is independent, but conceptually linked by hyperlinks that together form a systematically arranged internet presence, this may constitute a database provided that it is original; however, this does not affect potential copyrights on the individual web pages.
What rules govern the ownership of IP rights to fintech innovations?
Pursuant to the so-called ‘creative principle’ of copyright, the author of a work is always the one who created it. Therefore, the first copyright owner must always be a natural (physical) person – legal persons are unable to develop the intellectual activity required for a work protectable by copyright. Since copyright cannot be transferred among living persons (except in the case of renunciation of a co-author), the author retains its position as author for its entire life (and its legal successors for a period of 70 years from the author’s death). Only after the author dies can the copyright be transferred among legal persons. For the protected period, the author may only dispose of its copyright to the extent that it can (exclusively) grant rights of use of works to third parties or (non-exclusively) grant authorisations to use works.
Patent rights and utility model rights
Software as such is not protectable under the Patent Act or the Utility Model Act. Protection may be afforded if the software applies technical measures to achieve a technical purpose.
What immigration schemes are available for fintech businesses to recruit skilled staff from abroad? Are there any special regimes specific to the tech or financial sector?
EU and EEA citizens do not require a visa or a residence or other permit to work or reside in Austria.
An employer may employ a non-EU or EEA citizen (foreigner) if the foreigner has been issued an employment permit or a residence permit valid for this employment.
For skilled staff there are special immigration schemes in place (requiring, among other things, a certain skill level and a salary reaching certain thresholds).
What immigration schemes are available for foreign investors and entrepreneurs wishing to invest in or establish a fintech business in your jurisdiction?
As a national of a third country (ie, a non-EU or non-EEA country), a foreign entrepreneur can apply for a Red-White-Red card for start-up entrepreneurs if the following requirements are met:
- the development and market introduction of innovative products, services, processes or technologies by a new company to be founded;
- the submission of a conclusive business plan for the establishment and operation of the company;
- the personal exercise of significant influence on the management of the planned company;
- proof of capital for the company to be founded in the amount of at least €50,000, of which at least half is equity; and
- a certain minimum score pursuant to the legally standardised scoring procedure, which is based on objective criteria such as qualification, work experience, language skills and age.
The card entitles the holder to settle in Austria and operate the start-up business.
Notwithstanding the above, EU and EEA citizens may live in Austria with self-employed status indefinitely and without having to meet further requirements.
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