Copyright Infringements


Copyright infringements may result in consequences under civil and partially also criminal law. As the copyright and related right may be easily infringed, the penal provisions are relatively strict.

It is important to understand that in copyright law there is no "acquisition in good faith". This means, you can acquire rights only from those who actually hold them.

Example

A publishing house concludes a contract for publication concerning a collection of short stories with a writer. Some of the short stories do not originate with the writer. Even if the publisher is not aware of this, he commits a copyright infringement and is liable for it.

Civil law

In the event of copyright infringement, the author has a claim to injunctive relief and a claim to elimination of the disturbance. It may be demanded that the infringement be ceased or removed immediately and that no instances of copyright infringement occur in future. In contrast to German law, in Austria no notification is required, but is is advisable to notify the infringer.

Example

A record company reproduces and distributes audio recordings with adapted works for which no authorisation to adapt has been granted. The author of the original work may demand that the audio recording will not be produced in the future (claim to injunctive relief) and furthermore that any and all audio recordings (including any master tape used for the production) be destroyed.

In fine arts, a restoration or elimination of the alteration is often impossible, for instance if a picture has been partially painted over. The author may demand, however, that an appropriate note is provided.

In addition to that, authors have a declaratory right, which means in the event of a dispute they may seek a declaratory judgment that a certain right exists (e.g. that he or she is the holder of the copyright) or that a certain right does not accrue to another party.

In some cases, where there is a rightful interest, a publication of judgment at the expense of the unsuccessful party may be requested, for example, if another person has purported to be the author.

In addition to all these consequences, financial claims may be asserted. Irrespective of whether the copyright was infringed by or without fault, the author is always entitled to equitable remuneration (standard royalty) in the event of a copyright infringement.

But if the infringer of the copyright is at fault (she or he should have been aware that he or she infringes copyrights), the author may demand damages and lost profits (or recovery of the profits). This applies to infringements of exploitation rights as well as to infringements of moral rights. Damages may be awarded for material and non-material damage, not only to the author but also to any other rights holders (holders of rights of use).

Alternatively, – in the case of infringements of exploitation rights – twice the equitable remuneration may be demanded, however, only in the event of negligence or intent. This possibility should be used if a damage is difficult to prove or relatively small (or did not arise at all).

Criminal law

Intentional infringements of copyright are also relevant under criminal law. But in Austria it is a private criminal action, which means the authorities will not become active on their own initiative. The offence will only be indicted on the petition of the rights holder. The petition needs to be filed within 6 weeks of becoming aware of the infringement and the suspect, otherwise it is considered time-barred.

A reproduction or unlawful recording of a recitation or performance is not punishable under criminal law if it is made for personal use or without a consideration for the personal use of another person.

In practice, there is a problem especially with infringements over the Internet, that the rights holder is not aware of the identity of the infringer. If the rights holder contacts the operator of the relevant platform, the latter is often not obliged and sometimes not even authorised due to the Privacy Act to disclose the identity of the infringer. However, it is not possible to bring a private criminal action without naming a suspect.