Legislation and enforcement

Relevant legislation

What is the relevant legislation?

In Austria, the Federal Law on Copyright in Works of Literature and Arts and on Related Rights (the Copyright Act), in the current version of the Federal Gazette I No. 99/2015, provides for the protection of the intellectual property of the author and therefore defines the terms ‘author’ and ‘co-author’, the requirements of a protected work, and the author’s moral rights. Further, the law prescribes the exclusive exploitation rights of an author and the exemptions from it.

The Federal Law on Collecting Societies 2016, in the current version of the Federal Gazette I No. 27/2016, particularly provides for the operational requirements of a collecting society, as well as for their rights and duties towards copyright owners and users.

Enforcement authorities

Who enforces it?

The civil law provisions of the Copyright Act regarding infringement of exploitation rights and moral rights are enforced by the author of a work or the exclusive licensee, who is entitled to legal enforcement according to the licence agreement, through remedies before the ordinary civil courts.

Criminal law provisions are enforced by a public prosecutor upon a prosecution request from the injured rights holder.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The digital exploitation of works is considered in Austrian copyright law. Section 18a of the Copyright Act provides for the protection of an author’s ‘making available’ right. It is prescribed that the author has the exclusive right to make his or her works available to the public by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

This provision transposes article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

Austrian copyright laws do not have extraterritorial application. Additionally, on 22 January 2015, the European Court of Justice ruled in the Hejduk case (C-441/13) that copyright owners are entitled to file an action before a court in the jurisdiction in which the damage arising out of an alleged infringement of copyright occurs or is likely to occur. The occurrence of damage or the likelihood of its occurrence arises from the accessibility of a website in the respective member state of the court; it is, however, irrelevant whether the website is directed at a member state in which the court seised is situated. However, given that the protection of copyright and rights related to copyright granted by the member state of the court seised is limited to the territory of that member state, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that member state.

Agency

Is there a centralised copyright agency? What does this agency do?

Austria does not have a copyright agency, because copyright originates from the creation of a work and no formal requirements (eg, registration in public registers) need to be fulfilled in order for copyright to be acknowledged.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

The Copyright Act protects original intellectual productions in the fields of literature, music, art and cinematography.

Works of literature include works of language of any kind, including computer programs; theatrical works expressed by gestures or other movements of the body (works of choreography and pantomime); as well as works of a scientific or didactic nature which consist of two-dimensional or three-dimensional pictorial representations, unless they constitute works of art.

Works of art include works of photography (photographic works), architecture and applied art (commercial art).

Cinematographic works (films) are motion pictures in which the events and actions that form the subject of the work are presented either by images only or simultaneously by images and sounds, irrespective of the nature of the process employed in the production or performance of the work.

The Copyright Act does not legally define ‘musical art’. However, it is understood in the prevailing literature that musical art includes the supply of tones as a whole, including the melody.

Rights covered

What types of rights are covered by copyright?

The Copyright Act covers exploitation rights and moral rights (see question 13).

Exploitation rights grant the author the exclusive right to exploit his or her work in the manner reserved to him or her in sections 14 to 18a of the Copyright Act. This definitive catalogue comprises of the following rights:

  • the right to adapt and translate the work (section 14, paragraph 2);
  • the right to communicate to the public of the contents of a work of literature or cinematography for the first time (section 14, paragraph 3);
  • the right of reproduction (section 15);
  • the right of distribution (section 16);
  • the right of rental and lending (section 16a);
  • the right of broadcasting (section 17);
  • the right of recitation, performance and presentation (section 18); and
  • the right to make a work available (section 18a).

The exploitation rights ensure that the author can decide for him or herself if, and to what extent, his or her work shall be exploited. In general, the use of a work is not admissible without the author’s consent (except for limitations of copyright that are determined by law). Note that only a certain type of use that can be subsumed under the exploitation rights shall be exclusively reserved to the author. Any new and unclassifiable types of use are not bound by the exploitation rights, and, hence, a work could be used in this manner freely without consent of the author.

Excluded works

What may not be protected by copyright?

The Copyright Act only protects works that are peculiar and intellectual creations. According to court practice the creation of a human mind is deemed peculiar and intellectual if the work is the result of creative mental activity, which has obtained its peculiarity (ie, that which makes it distinguishable from other works) from the personality of the creator, who expresses his or her innermost nature in the respective creation and these personal elements make it unique. Hence, the creation must stand out from ordinary and popular works.

Thoughts as such (eg, ideas) are not protected under Austrian law. Only the specific form of the content is subject to protection. Hence, ideas must be brought in a tangible form of expression in order to be protected by copyright.

A distinction has to be made between protectable ideas and free content (public domain). For instance, any inspiration from nature or the chronology of historical events is in the public domain, hence, anybody can bring this material into a certain form. Only the peculiar form into which the author has transformed the free content shall then be protectable.

Further, according to section 7 of the Copyright Act, laws, orders, official decrees, public notices and decisions, or official works produced exclusively or mainly for official use, shall not enjoy copyright protection.

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

The Copyright Act does not include a fair use doctrine. Austrian law expressly determines the rights of the users to freely (ie, without the consent of the author) use a work and hence, prefers specific statutory exemptions from copyright infringement to the general concession that any use of a work could be fair depending on certain factors (eg, purpose of use, effect of the use).

Chapter VII of the Copyright Act contains several provisions stipulating limitations to the exploitation rights of the rights holder. The most relevant are the following:

  • Copyright shall not prevent the use of works as evidence in proceedings before courts or other authorities or for the purposes of administration of criminal justice and public safety (section 41).
  • Temporary acts of reproduction, which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right of the copyright holder (section 41a).
  • Any person may make single copies of a work on paper or a similar data carrier for their own use (including for professional use), and on any other data carrier (particularly digital copies) only for personal use and neither for direct nor indirect commercial use.
  • Schools and universities may make and distribute copies for purposes of teaching or training in the quantities required for a specific class or lecture (reproduction by schools for own use).
  • According to section 42c of the Copyright Act, works that become perceivable to the public during the reporting of current events may, to the extent warranted by the purpose of information, be reproduced, distributed, broadcast or used for public lectures, performances or presentations.
  • Works may be reproduced, distributed, broadcasted, made available to the public and used for public recitation, performance and presentation, provided that they are only used coincidentally and in passing without reference to the primary object of the exploitation action (inessential attachment).
  • Generally speaking, reproduction and distribution, as well as public recitation and broadcasting, shall be permissible when citing individual passages of a work of language that has been published, provided that the use in its certain extent is legitimated by the specific purpose (section 42f of the Copyright Act). Among other things, citation from works of literature as well as from musical and visual art works shall be admissible.
  • According to section 43 of the Copyright Act, speeches made in an assembly responsible for the conduct of public affairs, or in the course of proceedings before a court of law or other public agency, as well as political speeches given in public, may be reproduced, distributed, publicly delivered and broadcast for the purpose of reporting.
  • Individual articles contained in a newspaper or periodical concerning current economic, political or religious issues may be reproduced and distributed in other newspapers and periodicals (section 44). This shall not apply, however, where reproduction is expressly prohibited by the author (with wording such as ‘reprinting only with permission of the publisher’ or similar terms).
Architectural works

Are architectural works protected by copyright? How?

According to section 3 of the Copyright Act, ‘works of art’ also include works of architecture. In order to be protectable, the elected work must not only be functional but also an artistic interpretation. Solely technical solutions are not protectable. Hence, whether an architectural work can be granted protection will depend on whether the form elements rely only on technical aspects or whether they have also been included simply for reasons of taste, beauty and aesthetics, and hence, the artist has decided on the elements by use of creative exploitation of a certain margin.

In addition, models, plans, designs and drawings of buildings can be protected as works, provided that the particular technical task can be solved in different ways and that the concrete selected execution is not only functional, but can be qualified as artistic interpretation (see Austrian Supreme Court, Case No. 4 Ob 26/00b).

Performance rights

Are performance rights covered by copyright? How?

Performance rights in the sense of the rights granted to performers (eg, musicians, actors or dancers, or any person reciting or performing a work of literature or music) and to promoters are protected by the Copyright Act as ‘neighbouring (or related) rights’.

Performers are granted moral and exploitation rights. Hence, a performer shall have the exclusive right to fix his or her recitation or performance, including broadcasting thereof, on a video or audio recording medium, and to reproduce or distribute such recording. At the request of the performer, his or her name (or pseudonym) shall be shown on the video or audio media. This may not be done without his or her consent. Further, it is illegal to use a performance in an amended version, if these amendments are of a nature that harms the reputation of the performer (section 68, paragraph 1a of the Copyright Act). The same applies to the distribution and reproduction for the purpose of distribution of audio media on which the performance is fixed.

Unless an exception is permitted by law, recitation and performances given on the instructions of a promoter may be recorded on video or audio media only with the consent of the promoter. Video or audio media produced in violation of this provision may not be reproduced or distributed (section 66, paragraph 5 of the Copyright Act).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

Photographs

The Copyright Act acknowledges the protection of photographs (ie, images produced by a photographic process, in contrast to photographic works) in the chapter about neighbouring rights. The photographer shall have the exclusive right to reproduce, distribute, publicly present by means of optical devices and broadcast such photographs.

In the case of photographs produced commercially, the owner of the enterprise shall be deemed the producer. Where the producer has marked his or her name (including their pseudonym or trade name) on a photograph, copies thereof made by other persons and intended for distribution shall also bear the corresponding reference to the photographer.

Copyright protection in respect of photographs terminates 50 years after they were taken or, where the photograph is made public before the expiry of that term, 50 years after publication.

Audio recordings

Any person who fixes acoustic phenomena on an audio medium for the purpose of repeatable communication (the producer) shall enjoy the exclusive right to reproduce and distribute the audio medium. Reproduction shall be deemed to include the use of an audio medium for reproduction on another audio medium.

In the case of commercially produced audio media, the owner of the enterprise shall be deemed the producer.

Protection of audio recordings shall terminate 50 years after their production, but if the recording is made public before the expiry of such term, the term shall be 50 years after publication.

Broadcastings

Any person who transmits sounds or images by broadcasting or similar means shall have the exclusive right to transmit the broadcast simultaneously over another transmitter, to fix the broadcast on a video or audio medium (in particular, in photographic form) and to reproduce and distribute such medium.

Protection of broadcasts shall terminate 50 years after the broadcast.

Databases

A database shall enjoy protection under granted neighbouring rights if the obtaining, verification or presentation of its contents have required qualitatively or quantitatively a substantial investment. Therefore, the content of the database and not the structure itself, which could only be protected as copyrightable work, is subject to these provisions, and hence, these provisions more or less implement a protection of the investment.

Any person who has made such an investment shall have the exclusive right to reproduce, distribute, broadcast and publicly communicate the database as a whole or a qualitatively or quantitatively substantial part of the database.

The repeated and systematic reproduction, distribution, broadcasting and public communication of non-substantial parts of the database shall be deemed equivalent to these acts of exploitation where such acts conflict with the normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.

The rights in databases shall expire 15 years after the completion of the database; however, if the database is published before the end of that period, the term shall be 15 years after publication.

Moral rights

Are moral rights recognised?

The Copyright Act recognises moral rights of authors in the following ways.

Protection of authorship (section 19)

Where the authorship of a work is contested or the work is attributed to a person other than its creator, the latter shall be entitled to claim authorship. This right would be infringed if a third party wrongly attributes a work to him or herself. Waiver of this right shall be without effect.

Designation of the author (section 20)

The author shall determine whether and in what manner the work is to bear a designation of the author (eg, his or her full name or a pseudonym), or if the work shall be published anonymously.

Protection of works (section 21)

Any abridgements, additions or other alterations to the work itself, its title or the designation of the author must only be made with the author’s consent thereto, unless the law permits such alteration. Such alterations, in particular, shall be permissible if they are in accordance with the accepted practices of fair trading, that is to say, alterations necessitated by the manner or purpose of the authorised use of the work (eg, the adaption to new orthographic rules).

However, there are certain alterations that are under no circumstances admissible, because they infringe the moral interests in the works (protection from distortion of a work). This would be, for instance, the change of the fundamental character of a work.

Copyright formalities

Notice

Is there a requirement of copyright notice?

There is no requirement of copyright notice in Austria.

However, it is recommended for authors to mark their work as their own in some way, because according to section 12 of the Copyright Act, the person designated in the usual manner as the author on the copies of a work that has been published or on the original of a work of art shall be presumed to be the author, provided the designation gives his or her true name or a pseudonym known to be used by the author - or in the case of works of art, the artist’s known mark - failing proof to the contrary.

Hence, if a work is not marked respectively, this presumption of authorship is not applicable, and hence, considering that it is not possible to determine a certain author, the protection period cannot follow the death of the author.

What are the consequences for failure to use a copyright notice?

Not applicable.

Deposit

Is there a requirement of copyright deposit?

No, there is no such requirement.

What are the consequences for failure to make a copyright deposit?

Not applicable.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

No, there is no copyright registration in Austria.

Is copyright registration mandatory?

Not applicable.

What are the fees to apply for a copyright registration?

Not applicable.

What are the consequences for failure to register a copyrighted work?

Not applicable.

Ownership and transfer

Eligible 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?

Not applicable.

Duration of copyright

Protection start date

When does copyright protection begin?

Protection starts with the creation of the work.

Duration

How long does copyright protection last?

In Austria, section 60 of the Copyright Act provides for a protection period of 70 years following the death of the author with regard to literary and artistic works, and musical art. In the case of a co-authorship, the protection period ends 70 years after the death of the last surviving co-author. If the speech or performance has been recorded on an audiovisual carrier or an audio carrier, the term of copyright protection lasts for 70 years from publication of the recording.

The neighbouring right for photos lasts for 50 years from the taking of the photo, or where the photograph is made public before the expiry of that term, 50 years after publication.

Does copyright duration depend on when a particular work was created or published?

The protection period for anonymous and pseudonymous works shall run for 70 years after its creation. But when the work is published before the expiry of that period, copyright shall run for 70 years after publication.

Renewal

Do terms of copyright have to be renewed? How?

The terms for copyright protection are not renewable.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Prior to 1933, copyright protection expired 30 years after the death of the author. On 15 December 1933, the Austrian legislator extended the term, to 50 years after the death of the author. In 1953, the protection term was further increased up to 57 years. The increase was conditioned by the circumstances of the Second World War. It was required that the work was created before 1 January 1949 and that the work was still protected in 1953 (thus the respective creator must have died after 31 December 1902). With an amendment to the Copyright Act on 16 December 1972 (Federal Law Gazette 492/1972), Austria increased the protection term again up to 70 years in accordance with the changes in Germany in 1965. Since then, the general protection term for copyright protectable works has not changed.

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

In general, any use of a work that fulfils the criteria for a protectable work under the Copyright Act in a manner that is comprised by the types of exploitation mentioned in sections 14 to 18a of the Copyright Act without the consent of the author (or co-authors) constitutes a copyright infringement, unless the use falls under the limitations to copyright.

Additionally, if a user has been granted a licence to use the work, and he or she disregards the scope of this licence, this also constitutes an infringement of the exploitation rights of the rights holder (apart from the breach of contract between the parties).

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Claims under the Copyright Act can also be asserted against indirect perpetrators (eg, the instigator), not only against the direct offender.

In particular, a specific liability of the entrepreneur is prescribed. An action for injunction may also be brought against the owner of an enterprise where such infringement has been committed or is likely to be committed within the activities of the enterprise by one of his or her employees or agents. Further, where the infringement giving rise to equitable remuneration is committed by an employee or agent in the course of the activities of an enterprise, the owner of the enterprise shall be liable to pay such remuneration. The owner of the enterprise shall also be liable to compensate damages if he or she was aware or should have been aware of the violation.

Further, a rights holder can also apply for an injunction against an intermediary whose services are used by a third party to infringe a copyright or related right, provided that the intermediary is aware of the copyright infringement and hence, liable under the rules of the Austrian E-Commerce Act.

Available remedies

What remedies are available against a copyright infringer?

The author is entitled to bring a forbearance claim (section 81 of the Copyright Act). Such a cease-and-desist obligation would also include an obligation to remove the source of the infringement and the infringing products. However, this would only be admissible if the infringer is legally entitled to remove such products (section 86).

Preliminary injunctions may be granted, among other things, to secure such cease-and-desist claims (section 87c). With regard to preliminary injunctions, Austrian law focuses on the questions of infringement and validity. According to a lower evidentiary standard in interim proceedings, it is generally sufficient to convince the court that a copyrighted work is valid and that the occurrence of an infringement is more likely than the opposite.

Any person required to pay equitable remuneration or equitable compensation, or to pay damages (see question 41) shall also be required to render accounts to the rights holder and to have their correctness verified by an expert as a first step (section 87a).

The author is also entitled to be furnished with correct and complete information on the producer, content, country of origin and quantity of copies distributed by the offender. The right to information shall belong to the person to whom the right to distribute copies in Austria belonged at the time of exhaustion (section 87b).

Limitation period

Is there a time limit for seeking remedies?

Claims for equitable remuneration, for equitable compensation, for surrender of profits and for information become time-barred within three years. Forbearance claims and claims for removal become time-barred after 30 years.

Monetary damages

Are monetary damages available for copyright infringement?

Under section 86 of the Copyright Act the owner of a work is entitled to be paid an adequate compensation for the use of the work without his or her consent. The monetary compensation is assessed on the basis of a royalty as far as the adequate compensation (and not damages in case of intentional or negligent behaviour) is concerned. There is minimal case law regarding the assessment of the exact amount of the royalty rate to be paid. The licence fees to be paid usually are assessed on the commonly paid licence fees.

In the event of negligent or intentional behaviour, damages may be awarded instead of an adequate compensation. The author is entitled to either damages, including the own lost profits, or the surrender of profits made by the infringer. In order to facilitate the bringing of evidence, the author is also entitled to assert lumped damage claims. The amount of a lump damage claim is calculated on the basis of double the amount for adequate compensation.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

In Austria, attorneys’ fees can be claimed by the winning party from the losing party. The calculation basis for this is laid down in the Attorneys’ Tariff Act. Based on a determined amount in dispute, which for intellectual property proceedings is €43,200, the fees for all the required court actions (eg, hearings and written pleading) are calculated. Hence, in Austria, the losing party must reimburse the winning party for the costs of court proceedings calculated on these principles.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Any person who commits an infringement of the kind referred to in section 86, paragraph 1; section 90b; section 90c, paragraph 1; or section 90d, paragraph 1 of the Copyright Act shall be liable to imprisonment not exceeding six months or to a fine not exceeding 360 times the daily rate; ‘daily rate’ means the unit for the calculation of the fine on a certain daily basis. Therefore, Austrian verdicts determine a certain number of such daily rates and the respective amount for these rates. For instance, if the defendant is sentenced to 180 daily rates at €70, the fine in total amounts to €12,600. The infringement shall not, however, be punishable if it only involves the unauthorised reproduction or an unauthorised recording of a recitation or a performance for personal use or for the personal use of another person, effectively free of charge.

The offender shall be prosecuted only at the request of the person whose right has been infringed, and hence, the prosecutor does not initiate investigations ex officio.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Section 87b, paragraph 3 of the Copyright Act allows information claims of the rights holder against the internet access provider to identify infringing users if there is an obvious rights infringement.

Prevention measures

How may copyright infringement be prevented?

There is no fail-safe method of preventing copyright infringement. It depends on the circumstances of the case which measures can prevent or help to prevent copyright infringement. Hence, the respective strategy must always be a tailor-made solution that recognises the specific risks and understands the financial, technical and organisational circumstances of the rights holder to provide the best protection.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

The most important international copyright-related treaties of which Austria is a member are:

  • the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention);
  • the Universal Copyright Convention;
  • the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement);
  • the World Intellectual Property Organization Copyright Treaty (WCT);
  • the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
  • the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT); and
  • the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Further, Austria has been a member of the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite since 11 May 1994.

What obligations are imposed by your country’s membership of international copyright conventions?

Austria has transposed the provisions of the most important conventions for copyright law (ie, the Berne Convention, the TRIPS Agreement, and the WCT) into its own domestic law. As the National Assembly declared the accession of these three treaties with no reservations under Austrian constitutional law, there was no necessity for the issuance of further implementing laws. Therefore, all these treaties are directly applicable.

Austria is also a member state of the European Union and, hence, had to transpose a number of directives concerning copyright matters into the national copyright law. The most important directives that are already transposed into national law are the directive on the harmonisation of certain aspects of copyright and related rights in the information society, the directive on the legal protection of databases, the directive on satellite broadcasting and cable retransmission, and the directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.