Legal Issues in Austria

In Austria, the Federal Law on Copyright in Works of Literature and Art and on Related Rights (Austrian Copyright Act – UrhG) applies. Copyright as a body of law (i.e. copyright in the objective sense) grants authors subjective rights in their intellectual property (i.e. copyright in the subjective sense). Copyright is inheritable, but it is not otherwise transferrable (Section 23 UrhG). However, authors may permit others to use their works in a particular manner or in any manner of exploitation to which they are entitled under Sections 14–18a UrhG (right of use in the work and authorisation of the use of the work).

The copyright law of a state applies only within its own territory. This means that it has effect only within the borders of the country in which it was enacted. Hence, for example, the provisions of Austrian copyright law apply only on Austrian territory and those of German copyright law are applicable only on German territory (territoriality principle). Because the protective reach of national copyrights is limited spatially to the territory of the state in question, there is no uniform, globally valid copyright. Rather, a whole bundle of territorially limited national copyrights is available to authors. 

Where there is a connection between a work and a specific foreign country (“foreign nexus”), the territoriality principle also has conflict-of-laws implications insofar as the law that is applicable is that of the country for whose territory protection is claimed. This is referred to as the lex loci protectionis principle. It follows from this principle that the accrual, substance, and expiry of (subjective) copyright are determined by the law of the country in which the respective use, exploitation, or infringement takes place. 

The question of the personal applicability of copyright – that is, who enjoys protection under the respective applicable provisions and for what – is a separate issue. It is also referred to as the domestic nexus. In Austria, Section 94 et seq. of the Austrian Copyright Act (UrhG) are relevant in this regard. Besides the primarily relevant citizenship principle (Section 94 UrhG), further possible points of reference include, in particular, the place of publication and the place of performance (Section 95 and Section 97 UrhG). Nationals of European Union (EU) and European Economic Area (EEA) countries can invoke the principle of non-discrimination (Article 18 of the Treaty on the Functioning of the European Union [TFEU] and Article 4 of the European Economic Area Agreement). Copyright protection against nationals of third countries exists according to state treaties or subject to reciprocity (Section 96 UrhG). A key role is played by international copyright treaties (e.g. the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention), which lay down the principle of “national treatment”. 

For example, a US researcher who is working at a Swiss university and in the course of their work there publishes an article with a German publisher that is uploaded without their consent to the website of an Austrian database operator can invoke the protection of Austrian copyright law. 

Harmonisation of copyright law at the European level is leading to increasing standardisation of national provisions, which in turn is leading to international alignment of protection levels. Nonetheless, non-negligible and sometimes major differences exist between the national legal systems, which must be considered in each individual case. 

The Berne Convention – an international treaty to which most states in the world are a party – has led to the harmonisation of many elements of copyright law. As a result, the principle of lex loci protectionis (the law of the place where protection is claimed) also leads to fewer upheavals. For example, a scholarly publication in Germany enjoys the same protection as in the United States or South Africa. Things get more complicated in the case of limitations on copyright (also referred to in Germany as Schranken des Urheberrechts) – that is, types of use permitted by law.

For example, if a German researcher in Austria downloads a U.S. publication from a U.S. database in order to conduct a natural language processing (NLP) analysis in Austria within the framework of their research, this is covered by Section 42h of the Austrian Copyright Act (Text and Data Mining). Even if the publisher’s terms of use explicitly forbid such an action, it remains permissible under local law. In the event of legal proceedings, the dispute would be judged according to Austrian law because the owners of the U.S. database would seek legal protection in Austria, and therefore – according to the lex loci protectionis principle – Austrian law would be applicable.

Copyright protects works and related rights (also known as “neighbouring rights”). Works within the meaning of the Austrian Copyright Act (Section 1 UrhG) are original intellectual creations in the fields of literature, music, art, and cinematography. According to Austrian case law, the individual character alone is decisive for determining the existence of an original intellectual creation. A creation is individually characteristic if it sets itself apart from the everyday or the commonplace. The result of a creative intellectual activity that derives the individuality that distinguishes it from other works from the personality of its creator is deemed to be a work. A specific degree of originality (“threshold of originality”) is not required. As a result, even simple and apparently trivial creations can enjoy copyright protection irrespective of their aesthetic, scientific, or other value, provided they can be assigned to a category of works in the domains of literature, music, art, or cinematography. Copyright protects a work in whole or in part. Adaptations of a work (Section 5 UrhG) and collections (Section 6 UrhG) also enjoy copyright protection.

Furthermore, copyright protects only works created by humans. Although this point has recently become particularly relevant in connection with outputs generated by artificial intelligence (AI), it is also of relevance when assessing the protection of machine-generated research data. Even if the latter are the result of complex processes, and setting up the experiment or the machine may involve considerably more effort than, for example, writing a short text, the results (i.e. the data) are not protected unless the individual expression of the author comes through in them. The situation is similar in the case of AI-generated works (including texts produced with large language models [LLMs]). To obtain copyright protection, the work must reflect conscious decisions on the part of the creator. The boundaries are fluid and sometimes difficult to determine. As a rule of thumb, wherever a process is merely initiated by humans (e.g. by entering a prompt or starting a machine), the results do not enjoy protection. 

Related rights (also known as neighbouring rights) protect performances or products that are not themselves works but are performed or produced in connection with works or are similar to them. This includes performances by performing artists (Section 66 et seq. of the Austrian Copyright Act [UrHG]), the protection of event organisers (Section 72 UrhG), the production of photographs and moving images (Sections 73–75 UrhG), the production of audio recordings (Section 76 UrhG), the protection of broadcasts (Section 76a UrhG), the first publication of works in which copyright has expired (Section 76b UrhG), the production of investment-intensive databases (Sections 76c–76e UrhG), and – since the amendment of the Austrian Copyright Act in 2021 – the production of press releases (Section 76f UrhG). Compared with copyright protection in the narrower sense, the prerequisites for and the scope of protection are less extensive in the case of related rights. Furthermore, the term of protection of related rights is shorter.

Copyright grants authors moral rights on the one hand and economic exploitation rights on the other. The moral rights of authors, which are non-transferrable, protect authors’ moral interests in their works, whereas the exploitation rights regulate their powers to economically exploit a work.

Exploitation rights are so-called exclusive rights, that is, they entitle the author to exploit the work to the exclusion of all other persons. The most important exploitation right is the right of reproduction, which entitles the author to forbid any unauthorised reproduction of the work (e.g. any digital copy). Other important rights include the right of making works available to the public (which is, e.g., important when uploading protected content online) and the right of broadcasting. 

Copyright protection accrues the moment a work is created. Further measures, for example registration or an official administrative act, are not required. Copyright ends 70 years after the death of the author or – in the case of several joint authors – 70 years after the death of the last surviving joint author (Section 60 of the Austrian Copyright Act [UrhG]). In contrast to industrial property rights (especially trademark, design, and patent rights), the term of protection of copyrights and related rights cannot be extended. A work whose term of protection has expired can be used freely. However, as explained in the following paragraph, caution is warranted when doing so.

Several rightholders with rights of different terms of protection may have participated in a work. In the case of a piece of music, for example, the copyright of the composer or the lyricist may have expired long ago, but the related rights of the performing musicians and producers may still persist. In the case of texts that have been translated or otherwise adapted, besides the term of protection of the rights of the authors, the rights in the adaptation may have to be considered separately. In the case of photos, a distinction must be made between the rights of photographers and, if applicable, the rights in the photographed object. Only when all copyrights and related rights have expired, may the content be freely used in its entirety. And finally, it should be borne in mind that the term of protection may differ in other countries. 

When calculating the term of protection, the year of occurrence of the event that determined the commencement of the term of protection (e.g. the death of the author) should not be counted. In other words, the term of protection always begins on 1 January of the calendar year that follows the decisive point in time. 

Works in the public domain are not protected by copyright and may thus be used freely (Section 7 of the Austrian Copyright Act [UrhG]). They include laws, regulations, official decrees, public announcements, and court decisions, as well as other official literary works and works of a scientific or didactic nature produced exclusively or primarily for official use that consist of two- or three-dimensional figurative representations (e.g. maps or relief representations of mountain ranges), provided they are not classified as works of art. However, materials published by higher education institutions, for example examination tasks, sample solutions, scripts, etc., are not deemed to be works in the public domain. 

Furthermore, ideas, thoughts, concepts, methods, rules of play, etc. are not eligible for copyright protection. Only the tangible, outwardly perceptible form enjoys protection, not the still intangible intellectual content as such. For example, ideas or concepts for a specific course or research project, a didactic concept, or criteria for the successful completion of a course are not eligible for protection. Scientific findings and teachings, such as formulae, scientific or didactic methods, laws of nature, individual chords, a style, a verse form, geometric symbols, saga material, and inspirations from nature or history, are also freely usable. They are classified as intellectual property in the public domain. This category also includes the CVs of persons, historical events, current events, and news content. Therefore, copyright in a scholarly work does not protect the historical, economic, or societal data, facts and theories presented therein. Rather, protection accrues to the respective presentation, structure, selection, etc. – that is, to the concrete elaboration or preparation of a specific material. 

The author of a work is the person who created it (Section 10 [1] of the Austrian Copyright Act [UrhG]). Thus, the “creator principle” is enshrined in law. It follows from this that the author can only ever be a human being (a “natural person”) and never an animal, a machine, or a legal person (e.g. a regional or local authority, a university, or an enterprise). However, a legal person may acquire exclusive rights of use in the works (Werknutzungsrechte) or authorisations to use the works (Werknutzungsbewilligungen; licences) of third parties and thus become the holder of derived rights of use. But the natural person who created the work always remains the author. This applies also to a ghostwriter who is commissioned by another to write on their behalf and who is the only one who can claim authorship. This right cannot be waived (Section 19 [2] UrhG). However, a person may validly waive the right to be named as the author of a work (Section 20 [1] UrhG). After the author’s death, the heirs, as universal successors in title, assume the legal position of copyright holder. 

From the creator principle, it further follows that statutory copyright protection accrues automatically the moment the work is created (“real act of creation”). In contrast to brands, designs, or patents, the acquisition of protection requires neither registration nor a sovereign act. The advantage of the “automatic” accrual of copyright protection is that a work is effectively protected immediately without additional financial expense and formal effort.

Joint authorship

Where several persons have jointly created a work, and the work constitutes an indivisible unit, copyright accrues jointly to all joint authors (Section 11 [1] of the Austrian Copyright Act [UrhG]). Each joint author is separately entitled to take legal action against violations of copyright. Alteration or exploitation of the work requires the consent of all joint authors. If a joint author refuses consent without sufficient reason, any other joint author may sue for the grant of consent (Section 11 [2] UrhG). 

The combination of works of different types – for example a work of music and a literary or cinematographic work – does not establish joint authorship (Section 11 [3] UrhG); nor does an adaptation, where a work is used as a basis for a new work, or an individual contribution to a collection (e.g. a legal commentary). However, the authors of a jointly authored essay are joint authors. Joint authorship can also arise because of the transfer of copyright to several heirs due to the death of the copyright holder (Section 23 [4] UrhG).

Partial Authorship

The divisible combination of independent works of different types (e.g. a film and film music) does not establish joint authorship but rather partial authorship. The authors of individual contributions in a collection may – independently of the editors and the authors of other contributions – decide freely on the exploitation of the content of their own contributions, unless otherwise contractually agreed. The same applies, for example, to the setting to music of a song text. Unless an agreement to the contrary has been entered into, the authors of song texts are entitled to commission a new score without the consent of the composers, and the composers are entitled to use new lyrics. 

Assistants

Furthermore, assistants and persons who contribute ideas must be distinguished from joint authors. Because only a person who makes a creative contribution to a work can be deemed to be an author of the work, mere ideas or tips from the mentors of a thesis, for example, do not suffice to establish joint authorship. This applies even if the mentors suggested the topic of the thesis. Therefore, ideas, abstract suggestions, or the supervision of a work do not result in joint authorship. Assistants do not make an independent creative contribution to the creation of a work, either, and therefore do not acquire copyright. Hence, the purely routine activities – such as literature searches, the production of subject indexes and bibliographies, the elaboration of footnotes, and copy editing – that are typically performed by research assistants or student assistants do not lead to the accrual of (joint) copyright. However, it should be noted that, according to the Austrian Universities Act (UG), university members who have made an independent scientific or artistic contribution to a work must be named as co-authors (Section 106 [1] UG). Plagiarism is deemed to have been committed when text, content, or ideas are used and presented as one’s own. This encompasses in particular the appropriation and use of text passages, theories, hypotheses, findings, or data by directly quoting, paraphrasing, or translating them without appropriate identification and citation of the source and the authors (Section 51 [2] Number 31 UG). 

Rights Ownership in the Case of Contractual and Employment Relationships

In practice, the granting of rights of use often means that authorship and rights ownership are separated. Especially in cases where persons are paid to create copyrighted works – in other words in contractual and employment relationships – it is customary that the authors themselves are not entitled, or are entitled only to a limited extent, to make decisions about the exploitation of their works, because the exploitation rights pass to the contracting entity or the employer. Except in the case of computer programs and database works (Section 40b and Section 40f [3] UrhG), the Austrian Copyright Act does not contain any explicit special provisions for the creation of works in a contractual or employment relationship. Contracting entities and employers therefore primarily need – and are well advised – to have the rights contractually granted to them. However, even in the absence of an explicit agreement about rights ownership, a tacit grant of rights is assumed in the case of works created in the course of official duties, to the extent that that is necessary to fulfil the purpose of the (work) contract. 

According to previous case law, the following already applied before the amendment of the Austrian Copyright Act in 2021: If a work is created on behalf of a third party, that party is – at least logically – granted the right to use the work for the purpose for which it was commissioned. If the contract is meaningful for the contracting entity only if that entity alone is entitled to use the work product, then the contract between the contracting entity and the performing contractor includes the granting of a right of use in the work. In cases of doubt, the scope of the rights granted was determined by the practical purpose of the envisaged use of the work. With the amendment of the Austrian Copyright Act in 2021, the principle that the purpose of the contract determines the rights granted (Zweckübertragungsgrundsatz) was also enshrined in law (Section 24c UrhG). However, it does not apply to works created in the context of an employment relationship. Particular consideration should be given to the employment relationship when interpreting (implied) contracts.

Clauses granting rights of use can also be found in the usual (employment) contracts at universities and research institutions. If such an agreement with researchers is lacking, and if they produce a work, for example a PowerPoint presentation or an E-learning unit, it should be established whether it arose in performance of official duties or whether another obligation to produce the work can be derived from the underlying contractual relationship. In these cases – for example in the case of project staff employed to generate E-learning content – a tacit grant of rights can be assumed even in the absence of an explicit legal agreement, so that the rights are held by the university. It should be noted that because of the constitutionally guaranteed freedom of research and science (Article 17 Austrian Basic Law [StGG]), university members and university teachers have the right to freely dispose of the results of their own work and to decide themselves about the publication or exploitation of their works. The authors of the teaching and learning material are therefore the respective teachers. Where they have commissioned third parties to produce the material, these third parties are considered to be the authors of that material. In the absence of contractual agreements to the contrary, the exploitation rights in teaching and learning material are always held by the teachers because their duties primarily comprise teaching and the transfer of knowledge but not, however, the provision of material. Caution is therefore warranted when assuming tacit grants of rights. In the absence of corresponding provisions in the (employment) contract, separate licensing agreements should be concluded. Where university members and university teachers generally act outside the obligations of their (employment) contracts, they may freely dispose of such works and decide independently about their exploitation. In this case, too, contractual agreements are necessary in order to be able to exploit such work results. 

Where a higher education institution intends to make their students’ dissertations and theses available in its own repository, it must secure the necessary rights of use from the authors (see also Section 86 of the Austrian Universities Act [UG]). If exclusive rights of use are granted in a specific work, the authors are excluded from using and further exploiting the work themselves. In this case, the licensing of the content by the author under an open source/open access licence such as a Creative Commons licence is ineffective.

Amini, S. & Forgó, N. (2019). Urheberrechtsfragen beim Einsatz von Multimedia an Hochschulen. Ein Leitfaden für die Praxis am Beispiel der Universität Wien. Available online: https://phaidra.univie.ac.at/o:28164