Part I: Copyright in Works of Literature and Art

Chapter I: Works

Works of Literature and Art     1

Works of Literature     2

Works of Art     3

Cinematographic Works     4

Adaptations     5

Collective Works     6

Works Not Protected     7

Works Made Public     8

Published Works     9

Chapter II [Untitled]

Authors     10

Joint Authors     11

Presumption of Authorship     12

Unnamed Authors     13

Chapter III: Copyright

1. Exploitation Rights

[Untitled]     14

Right of Reproduction     15

Right of Distribution     16

Rental and Lending     16a

Exhibiting 16b

Right of Broadcasting     17–17b

Right of Recitation, Performance and Presentation     18

2. Protection of Moral Interests

Protection of Authorship     19

Designation of Author     20

Protection of Works     21

3. Obligations of Owners of Works     22

4. Transfer of Copyright     23

5. Authorization to Use and Right to Use a Work     24

6. Limitations on Enforcement     25

Chapter IV [Untitled]

Right to Use a Work     26

Transfer of Right to Use     27–28

Premature Rescission of the Contract     29–30

Right to Use in Respect of Future Works     31

Bankruptcy and Insolvency     32

Chapter V: Reservations in Favor of the Author

Rules of Interpretation     33

Complete Editions     34

Reservation Relating to Works of Art     35

Contributions to Collections     36–37

Chapter VI: Special Rules for Commercially Produced Cinematographic Works

Film Producers     38

Authors     39

Exploitation Right and Right to Use     40

Chapter VIa: Special Provisions on Computer Programs

Computer Programs     40a

Employees     40b

Right to Use     40c

Free Uses     40d

Decompilation     40e

Chapter VIb: Special Provisions on Database Works

Databases and Database Works     40f

Right of Reproduction     40g

Free Uses     40h

Chapter VII: Limitations on Exploitation Rights

1. Free Uses of Works

Free Uses in the Interests of the Administration of Justice and Public Administration     41

Reproduction for Personal Use     42–42b

Reporting of Current Events     42c

Free Uses of Works of Literature     43–50

Free Uses of Musical Works     51–53

Free Uses of Works of Art     54–55

Use of Video or Audio Media and of Broadcasts in Certain Commercial Enterprises     56

Provision of Video or Audio Media to Federal Institutions for Audiovisual Media     56a

Use of Video or Audio Media in Libraries     56b

Public Communication for Teaching     56c

Public Communication in Accommodation Enterprises     56d

Protection of Moral Interests in Relation to Free Use of Works     57

2. Compulsory License for Audio Recording     58

3. Use of Broadcasts     59–59a

4. Retransmission of Satellite Programs     59b

Chapter VIII: Term of Copyright

Works of Literature, Music and Art     60–61

Register of Authors     61a–61c

Cinematographic Works     62

Serial Works     63

Computation of Terms of Protection     64

Rights Extending Beyond the Term of Protection     65

Part II: Related Rights

Chapter I: Protection of Recitation and Performance of Works of Literature and Music

1. Exploitation by Means of Video and Audio Media

[Untitled]     66

Exploitation Rights     67

Protection of Moral Interests     68

Exceptions     69

2. Exploitation by Broadcasting     70

3. Exploitation for Public Communication     71

4. Common Provisions     72

Chapter II: Protection of Photographs, Audio Recordings, Broadcasts and Posthumous Works

1. Photographs

[Untitled]     73

Protection Rights     74

Special Provisions for Photographic Portraits of Persons     75

2. Audio Recordings     76

3. Broadcasts     76a

4. Posthumous Works     76b

Chapter IIa [Untitled]

Protected Databases     76c

Protection Rights     76d

Contracts for the Use of Databases     76e

Chapter III: Protection of Letters and Portraits

Protection of Letters     77

Protection of Portraits     78

Chapter IV: Protection of News. Protection of Titles of Works of Literature and Art

Protection of News     79

Protection of Titles     80

Part III: Exercise of Rights

Chapter I: Civil Actions

Action for Injunction     81

Cease and Desist     82

Action for Injunction in Respect of Works of Art     83

Action for Injunction in Cases Governed by Articles 79 and 80     84

Publication of Judgment     85

Right to Equitable Remuneration     86

Claim to Damages and Surrender of Profits     87

Rendering of Accounts     87a

Right to Information     87b

Liability of the Owner of an Enterprise     88

Liability of More than One Person     89

Prescription     90

[Untitled]     90a

Chapter II: Criminal Law Provisions

Infringement     91

Destruction and Rendering Unusable of Infringing Articles and Devices     92

Seizure     93

Part IV: Scope of Application of the Law

1. Works of Literature and Art

Works of Nationals     94

Works Published in Austria and Works Affixed to Real Estate Located in Austria     95

Works of Foreigners Not Published in Austria and Not Affixed to Real Estate Located in Austria     96

2. Recitations and Performances of Works of Literature and Music     97

3. Photographs     98

4. Audio Recordings and Broadcast Audio Recordings

[Untitled]     99

Broadcasts     99a

Posthumous Works     99b

4a. Databases     99c

5. Protection of News and Titles     100

Part V: Transitional and Final Provisions     101–114

Works of Literature and Art

1.—(1) Works within the meaning of this Law shall be original intellectual productions in the fields of literature, music, art and cinematography.

(2) The copyright protection provided by this Law shall extend to a work as a whole and to its parts.

Works of Literature

2. Works of literature within the meaning of this Law shall be

1.     works of language of any kind, including computer programs (Article 40a);

2.     theatrical works expressed by gestures or other movements of the body (works of choreography and pantomime);

3.     works of a scientific or didactic nature which consist of pictorial representations in two or three dimensions, unless they constitute works of art.

The prevailing view is that computer programs constitute works of literature.

Works of Art

3.—(1) Works of art within the meaning of this Law shall include works of photography (photographic works), architecture and applied art (commercial art).

(2) Works of photography (photographic works) are works produced by a photographic process or a process analogous to photography.

Cinematographic Works

4. Cinematographic works (films) within the meaning of this Law 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.

Adaptations

5.—(1) Without prejudice to any copyright subsisting in the adapted work, translations and other adaptations shall be protected as original works, provided they are original intellectual creations of the translator or adapter.

(2) Use made of a work in creating another work shall not make that other work an adaptation, provided such work constitutes an independent new work in relation to the work used.

Collective Works

6. Collections which constitute an original intellectual production resulting from the combination of individual contributions to form a homogeneous whole shall enjoy copyright protection as collective works; any copyright in the individual contributions shall not be affected.

Works Not Protected

7.— (1) Laws, orders, official decrees, public notices and decisions, or official works produced exclusively or mainly for official use of the kind specified in Article 2, items 1 or 3, shall not enjoy copyright protection.

(2) Cartographic works produced or adapted (Article 5(1)) by the Federal Standards and Survey Office and intended for distribution (Article 16) shall not constitute unprotected works.

Works Made Public

8. A work shall be deemed to have been made public if it has been made available to the public with the authorization of the right holder.

Published Works

9.—(1) A work shall be deemed published if, with the authorization of the right holder, copies in sufficient numbers have been made available for sale or circulated to the public.

(2) A work which has been published within a period of 30 days in Austria and abroad shall count as a work published in Austria.

10.—(1) The author of a work shall be the person who has created it.

(2) Unless the contrary is established by reference to the provision in paragraph (1), the term “author“ within the meaning of this Law shall cover, in addition to the creator of the work, the persons on whom the copyright devolves after his death.

Joint Authors

11.—(1) Where two or more persons have jointly created a work in such a manner that the result forms an indivisible whole, the copyright shall belong jointly to all the authors.

(2) Each joint author shall be separately entitled to institute proceedings for infringement of copyright. Any alteration or exploitation of the work shall require the consent of all joint authors. Where a joint author refuses his authorization without sufficient reason, any other joint author may institute proceedings to obtain such authorization. Where the defendant is not subject to the general jurisdiction of any court in Austria, the courts whose jurisdiction includes the First Municipal District of Vienna shall be competent.

(3) The combination of works of different kinds— such as of a musical work with a work of language or a cinematographic work—shall not in itself give rise to joint authorship.

Presumption of Authorship

12.—(1) Failing proof to the contrary, the person designated in the usual manner as the author on the copies of a work which has been published or on the original of a work of art shall be presumed to be the author (Article 10(1)) provided the designation gives his true name or a pseudonym known to be used by him or—in the case of works of art—the artist’s known mark.

(2) The same shall apply to the person who, in the manner indicated in paragraph (1), is designated as the author when a work is publicly delivered, performed or broadcast, unless another person is presumed to be the author under paragraph (1).

Unnamed Authors

13. As long as the author (Article 10(1)) of a work which has been published has not been designated in a manner that gives rise to presumption of authorship under Article 12, the editor or, where no editor is designated on the copies, the publisher shall be considered the person entitled to administer the author’s copyright. In such cases, the editor or publisher shall be entitled to institute proceedings for infringement of copyright in his own name.

1. EXPLOITATION RIGHTS

14.—(1) Within the limits defined by law, the author shall have the exclusive right to exploit his work in the manner reserved to him in the provisions which follow (exploitation rights).

(2) The author of a translation or other adaptation may exploit such work in the manner reserved to him only where the author of the adapted work has granted him the exclusive right or the permission to do so (right of adaptation or translation).

(3) Communication to the public of the contents of a work of literature or cinematography shall be reserved to the author, for as long as neither the work nor its substance has been published with his consent.

Right of Reproduction

15.—(1) The author shall have the exclusive right to reproduce his work by any process and in any quantity.

(2) Reproduction shall also be constituted by, in particular, the fixation of a recitation or performance of a work on any device permitting repeated visual or sound reproduction (video or audio recording media), such as film or phonograms.

(3) Devices permitting the repeated reproduction of works without recording of the sound, produced by perforating, punching, arranging pins or similar (barrel-organs, musical boxes, etc.) shall be considered equivalent to phonograms.

(4) In the case of plans and designs for works of art, the right of reproduction shall also include the exclusive right to execute the work according to such plans or designs.

Right of Distribution

16.—(1) The author shall have the exclusive right to distribute copies of his work. By virtue of this right, copies of the work may not be offered for sale or put into circulation in such manner that the work is made available to the public without the author’s consent.

(2) For as long as a work remains unpublished, the right of distribution shall further include the exclusive right to make the work available to the public by publicly posting, printing, hanging, exhibiting or similarly using copies thereof.

(3) The right of distribution shall not extend, subject to Articles 16a and 16b, to copies of the work which, with the authorization of the person entitled thereto, have been put into circulation by transfer of the property rights therein; however, where such authorization has been given for a specified territory only, the right to distribute outside such territory copies put into circulation therein shall not be affected; this exception shall not apply to copies put into circulation, with the authorization of the entitled person, in a Member State of the European Economic Community or of the European Free Trade Association.

(4) The right of distribution in a work of art shall not extend to copies which are attached to immovable property.

(5) The term “to distribute a work“, as used in this Law, means only such distribution of copies as is reserved to the author under paragraphs (1) to (3).

Rental and Lending

16a.—(1) Article 16(3) shall not apply to the rental (paragraph (3)) of copies.

(2) Article 16(3) shall apply to the lending (paragraph (3)) of copies with the proviso that the author shall be entitled to equitable remuneration. Such claims may only be asserted by collecting societies.

(3) For the purposes of this provision, “rental“ means making available for use for a limited period of time and for profit-making purposes, and lending means making available for use for a limited period of time, but not for profit-making purposes, by an institution to which the public has access (library, videogram or phonogram collection, art collection and the like).

(4) Paragraphs (1) and (2) shall not apply

1.     to rental and lending for the purposes of broadcasting (Article 17) or public delivery and public performance and exhibition (Article 18);

2.     to works of applied art (of commercial art).

(5) Where a person entitled to use a work, or a film producer entitled under Article 38(1), authorizes other parties, for consideration, to rent or lend copies, the author shall have a non-renounceable claim against the person entitled to use the work or against the film producer to an equitable share in such consideration. If the claim to remuneration for the lending of copies belongs to another person in accordance with the law or under a contract, the author shall have a non-renounceable claim to an equitable share of the remuneration.

Exhibiting

16b.—(1) Article 16(2) and (3) shall apply to the public exhibiting of copies, with the proviso that the author shall be entitled to equitable remuneration if copies of art works are commercially exhibited for payment. Such claims may only be asserted by collecting societies. Article 16a(5) shall apply mutatis mutandis.

(2) Paragraph (1) shall not apply to works of applied art (of commercial art).

Right of Broadcasting

17.—(1) The author shall have the exclusive right to broadcast his work by radio, television on similar means.

(2) Where a work is publicly communicated in Austria by an entity located inside or outside the country in a manner comparable to broadcasting but with the aid of conductors, such communication shall be assimilated to broadcasting.

(3) The communication of broadcasts

1.     by a broadcasting relay system and

2.     via a community antenna system,

(a)     where all the receivers are located only on contiguous pieces of ground, where no part of the system uses or crosses a public road and where the antenna is not more than 500 meters away from the nearest receiver, or

(b)     where not more than 500 participants are connected to the system,

shall not be regarded as a new broadcast. In other respects the simultaneous communication, with the aid of conductors, of complete broadcasts of the Austrian Broadcasting Organization within the country, without alteration, shall be regarded as part of the original broadcasting.

17a. Where the program-carrying signals are transmitted in coded form, this shall be considered a broadcast only if means for decoding the transmission have been made available to the public by the broadcasting organization itself or with its consent.

17b.—(1) In the case of a satellite broadcast, the exploitation act reserved to the author shall be constituted by the introduction of the program-carrying signals, under the control and responsibility of the broadcasting organization, into an uninterrupted communication chain leading to the satellite and back to earth. The satellite broadcast shall therefore be deemed effected only in the country in which such introduction takes place, subject to paragraph (2).

(2) If the introduction referred to in paragraph (1) takes place in a country which is not a Member State of the European Economic Area and in which the level of protection provided for in Chapter II of the European Communities Council Directive of 27 September 1993 on the coordination of certain rules concerning copyright and the rights related to copyright applicable to satellite broadcasting and cable retransmission, Official Journal of the European Communities (OJCE), No. L 248 of 6 October 1993, p. 15, in the version applicable to Austria under Annex XVII of the European Economic Area Agreement, is not guaranteed, then the broadcast shall be deemed effected

1.     in the Member State of the European Economic Area in which is located the uplink station from which the program-carrying signals are transmitted to the satellite;

2.     in the Member State of the European Economic Area in which the broadcasting organization that commissioned the introduction referred to in paragraph (1) has its principal place of business, if the circumstance under item 1 does not apply.

(3) In the cases specified in paragraph (2), the operation of the uplink station or, as the case may be, the commissioning of introduction within the meaning of paragraph (1) shall be deemed broadcasting within the meaning of Article 17(1).

Right of Recitation, Performance and Presentation

18.—(1) The author shall have the exclusive right to recite or perform publicly a work of language, to perform publicly a work of the kind specified in Article 2, item 2, or a work of music or cinematography, and to present a work of art publicly by means of an optical device.

(2) It shall be immaterial whether the recitation or performance is made live or by means of video or audio recordings.

(3) Public recitation, performance and presentation shall include the use of a broadcast for the public reproduction of the broadcast work by means of loudspeakers or other technical devices, as also the public communication, by such means, of a recitation, performance or presentation of a work outside the location (theatre, hall, public square, garden, etc.) where it is taking place.

2. PROTECTION OF MORAL INTERESTS

Protection of Authorship

19.—(1) 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. After his death, the right to safeguard the authorship of the creator of the work shall, in such cases, be held by the persons upon whom the copyright devolves.

(2) Waiver of this right shall be without effect.

Designation of Author

20.—(1) The author shall determine whether and in what manner the work is to bear a designation of author.

(2) An adaptation may not bear a designation of author in a manner that would make the adaptation appear to be an original work.

(3) Copies of works of art may not bear a designation of author that would make the copies appear to be originals.

Protection of Works

21.—(1) Where a work is used in a manner which makes it available to the public, or where it is reproduced for the purpose of distribution, no abridgements, additions or other alterations to the work itself, its title or the designation of author may be made, even by a person entitled to such use, unless the author consents thereto or unless the law permits such alteration. Such alterations, in particular, shall be permissible, as the author may not prohibit in accordance with the accepted practices of fair trading, that it to say, alterations necessitated by the manner or purpose of the authorized use of the work.

(2) The provisions of paragraph (1) shall apply to the originals of works of art even where such originals are not used in a manner that makes the work available to the public.

(3) The fact of having given his consent to alterations which are not specifically designated shall not prevent the author from opposing distortions, mutilations or other alterations of the work which seriously violate his moral interests in the work.

3. OBLIGATIONS OF OWNERS OF WORKS

22. On request, the owner of a work shall be required to afford the author access to the work where necessary for the reproduction of the work: in such case, the author shall show due consideration for the interests of the owner. The owner shall not be required to surrender the work to the author for such purpose: neither shall he have an obligation towards the author to ensure the preservation of the work.

4. TRANSFER OF COPYRIGHT

23.—(1) Copyright may be transferred by inheritance; it may also be transferred to specific successors in execution of a testamentary disposition.

(2) Where no one makes claim to the estate of a joint author and it does not revert to the State, the copyright of such joint author shall devolve upon the other joint authors. The same shall apply where one of the joint authors waives his copyright, to the extent that such waiver has effect.

(3) Copyright shall not otherwise be transferable.

(4) Where copyright is transferred to more than one person, the provisions applicable to joint authors (Article 11) shall be applicable to such persons mutatis mutandis.

5. AUTHORIZATION TO USE AND RIGHT TO USE A WORK

24.—(1) The author may authorize others to use the work by some or all of the methods of exploitation reserved to the author under Articles 14 to 18 (authorization to use). He may also grant to other persons the exclusive right so to do (right to use).

(2) An authorization to use a work given prior to the granting or assignment of a right to use shall continue to have effect in respect of the person entitled to use, unless otherwise agreed with the holder of the authorization to use.

6. LIMITATIONS ON ENFORCEMENT

25.—(1) Exploitation rights shall be exempt from enforcement of claims for money.

(2) Enforcement against a copy of a claim for money shall be inadmissible where the sale of such copy would violate the right of distribution belonging to the author or other entitled person.

(3) Paragraph (2) shall not apply to copies which, at the time of seizure, have been placed in pledge by or with the consent of the holder of the right of distribution.

(4) In the case of works of art, the right of distribution shall not prevent enforcement against copies that are offered for sale by the holder of the right of distribution.

(5) Devices intended exclusively for the reproduction of a work (such as moulds, plates, stones, blocks, film strips, etc.) and which belong to a person entitled thereto, shall be subject to enforcement claims for money only as an accessory in conjunction with the right of reproduction.

(6) The same shall apply, mutatis mutandis, in the case of devices intended exclusively for the showing of a cinematographic work (film strips, etc.) and which belong to a holder of the right thereto.

26. The way in which an entitled person (Article 24(1), second sentence) may use a work, the means employed and any limits of place and time shall be governed by the contract concluded with the author. Insofar as the right to use extends thereto, the author shall abstain, as any third party, from making use of the work, but without prejudice to his right to institute copyright infringement proceedings. Upon the expiry of this obligation, the earlier exploitation right shall re-enter into force.

Transfer of Right to Use

27.—(1) The right to use shall be heritable and alienable.

(2) As a rule, the right to use may be transferred to specific successors only with the consent of the author. Such consent may only be withheld for an important reason. Consent shall be deemed to have been given if the author does not refuse it within two months of receiving a written request from the holder of the right to use or from the person to whom the right to use is to be transferred; this condition must be expressly mentioned in the request.

(3) A person who acquires the right to use a work as a specific successor shall comply with the obligations incumbent upon the seller under the contract concluded between the seller and the author. The seller, as guarantor and payer, shall be liable for the payment due to the author, as well as for any damages for which the purchaser must compensate the author in the event of a breach of an obligation incumbent upon him under that contract.

(4) Any agreement entered into between the seller and the purchaser without the consent of the author and that contradicts the provisions of paragraph (3) to the prejudice of the author shall be without effect in respect to the author.

(5) The liability of the purchaser in the event of a claim against the seller for damages arising prior to the transfer shall be governed by the general rules of law.

28.—(1) Unless otherwise agreed, the right to use a work may be transferred to another person together with the business enterprise to which it belongs, or a branch thereof without the consent of the author.

(2) Furthermore, where the holder of the right to use the work is not required to exercise such right and has not agreed otherwise with the author, the following may be transferred without the consent of the author:

1.     the right to use works of language and works of the kind referred to in Article 2, item 3, if they are created either on the commission of the holder of the right to use and according to his plan defining the contents and the method of treatment or if they are created merely as aids or accessories to the work of another person;

2.     the right to use works of photography (photographs) and of applied art which are created for a commercial enterprise on its commission or in its service.

Premature Rescission of the Contract

29.—(1) 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 is not at fault, may rescind the contract prematurely insofar as it relates to such right to use.

(2) Rescission shall not become effective until the fruitless expiry of an appropriate additional term fixed by the author. Such term need not be fixed where the exercise of the right to use is impossible for the acquirer or is refused by him or where to allow such an additional term would jeopardize overriding interests of the author.