Copyright Limited in respect of Content (Free Use of Work)
In certain cases, there are statutory exemptions from the exploitation rights under copyright law. These vary – depending on the category of work concerned. But there are also general free uses of work which apply to all categories of works. As copyright is a protective right, the scope of application for free uses of work is deemed rather narrow. You should also bear in mind that the burden of proof for the lawful free use of a work always lies with the user in the event of a lawsuit. Moreover, the free use of a work must not impair the author's nonmaterial interests or conflict with moral rights. This is why generally abridgements, alterations and additions are not permitted.
To make up for the free use of works, mere remuneration claims have been introduced.
General free uses of works:
Transient or incidental reproduction
A reproduction is regarded as a free use of work if is done in a merely transient or incidental manner and only serves the purpose of transmission and no purpose of its own. This is for example mostly the case with PC or Internet use because a copy is automatically saved to the RAM.
Reproductions for your private and own use
This type of use of a work applies to all media materials but may under no circumstances (directly or indirectly) serve commercial interests or be made available to the public. The use of an obviously illegal source also rules out a free use of works. There is no statutory upper limit applicable to reproduction for your private and own use, however Prevailing opinion assumes 5-7 copies, depending on the purpose of reproduction.
A song is purchased legally over the Internet. Storing MP3 files on an MP3 player, on a mobile phone or even burning on a CD such that you are able to listen to the music on all your devices is a classic case of reproduction for your own private use and therefore an authorised free use of work.
In certain cases (in particular for schools and universities, public collections and for media observation); the exceptions even go further.
What is excluded is the reproduction for your own use in the case of sheet music, whole books or journals. It is also permitted to copy entire building structures.
The reproduction for the own use of third parties is also permitted within narrow limits, however, only on order – and not in advance. However, the reproduction may not be made against consideration.
In three special cases, you are even permitted to make a reproduction for others against consideration:
- Copying of a work of music or literature
- Reprographic reproduction, i.e., the classical copying on paper (e.g. in a copyshop)
- For the purposes of media observation
Hence, the free use of works mainly refers to reproduction. Rights of distribution are not encompassed. This means, the making available to the public is still not permitted (e.g. upload of a protected work in a social network).
Reporting on current events
This right of free use of works does not only include reproduction, but also distribution, such as by public communication, by broadcasting or making available. The uses of works published in a report on current events are permission-free. The term "current event" is to be interpreted narrowly. The permission-free use of works in the coverage is only possible if the event takes place on the same day or shortly before that day. In particular, pre-event coverage is not included.
The works as such may not be the object of the report. It rather refers to works which become perceivable within the coverage. Cultural events may also be current events.
The team of a TV news programme interviews people during a local festival. Music from the stage can be heard in the background. The use of this report is not subject to authorisation.
But if a report is filmed about the band including concert recordings, this report is subject to authorisation.
Right of quotation
A work published or a work made available to the public with the consent of the author may be reproduced or distributed for quotation purposes as far as the use to that extent is justified by a particular purpose. The right of quotation applies to all categories of works, but there are still special provisions or detailed regulations that apply for certain categories of works. For scientific works an extensive "large" quotation is permitted. Generally the following applies: The quotation must be accurate and complete and serve a supporting function, hence it must be necessary (for understanding). It may only be quoted to the extent required. Simply "embellishing" articles or academic papers is not covered by the free use of works. Furthermore, quotes must always be provided with a correct indication of source.
If an artistic image is interpreted within a research paper, printing the work is permitted. The image citation has an explanatory and supporting function in this case.
Public communication in education
The public communication of cinematographic works for educational purposes is permitted in schools, universities and other educational establishments.
Public communication in certain business enterprises
In businesses selling film and audio recordings, the works may be communicated to the public as far as necessary. This is to be preceded, however, by a request from the customer. For example, it is permitted and quite common that turntables and CD players are made available in record stores such that potential buyers may listen to the pieces of music before deciding what to buy. This does not extend to the general music exposure by the audio system in the shop.
Public communication in hotels and guesthouses
Accommodation establishments which means hotels, guesthouses and the like may exhibit films for their guests as far their release in Austria and in German does not date back less than two years ago.
Use of film and audio recordings in libraries
The use in libraries serves only the purpose of viewing and listening on site and is limited to two simultaneous uses.
Works may reproduced and distributed (e.g. by broadcasting) if they are used only incidentally or by coincidence and without a relation to the actual object of the act of exploitation.
For people with disabilities
The representation of the work must be in a form accessible for people with disabilities (e.g.: braille).
This is primarily intended for the preservation of evidence, including the copying and digitisation of official and lawyers' documents.
Media archives are scientific public-law institutions of the federal government which establish collections of audiovisual media and do not pursue any commercial purposes.
Particular free uses of works:
For the individual fields of copyright, there are particular free uses of work. The most important cases are described briefly below:
What is particular in the field of music, is the freedom of performance. Pieces of music released may by performed publicly in some cases. For example, on church, army or civic (especially dignified) occasions, or where the audience does not pay any admission fee (not even voluntary donations) and the event does not serve a profit-making purpose. Charity events are excepted provided that none of the contributors receives any remuneration.
The freedom of visitor catalogues is worth mentioning. Owners of collections may reproduce images of original works completely or at least comprising whole sections in a catalogue as far as necessary to promote visits. The same holds true for the freedom of auction and sales catalogues. Another exception refers to the reproduction of portraits. If it is a commissioned work, it may be reproduced also by third parties and against consideration.
Software is also protected by copyright. However, the provisions on the personal copy do not apply. There are special regulations for computer programs because even during the normal use of a program, reproductions are made on an ongoing basis. Therefore, the user is authorised to reproduce and adapt the program as long as the user has acquired the program lawfully and uses it for the intended use. Furthermore, debugging operations by the user or an agent are covered.