Exploitation Rights


It is left to the author's discretion how their own works may be exploited. They may permit or prohibit any use and demand a remuneration for the granting of individual rights.

We distinguish between tangible (reproduction and distribution) and intangible (performance and broadcasting) methods of exploitation.

Right to reproduce

The right to reproduce is the right to copy a work. Any process of copying, irrespective of the method or storage medium used for this purpose (e.g. copy on paper, recording of a theatrical performance on sound tape or by video camera, temporary storage in the RAM ...) is considered a reproduction. Except for the free use of a work, the purpose of the reproduction is irrelevant.

Right of distribution

The right of distribution is the right to make the work accessible to the public. The term public is of critical importance here. Passing on in the private sphere (e.g. among close friends) is not considered a distribution. However, as soon as a work is circulated, that is to say, offered, given, sold or lent to a wider group of unknown or unspecified people, this is regarded as distribution.

The author's right of distribution of a specific copy of the work expires as soon as it is sold or given away with his or her consent and someone else becomes the owner of the copy of the work. This rule applies, of course, only to the specific copy and not to the work as such.

Example

The author sells 100 copies of his new book to a bookshop. Consequently, his distribution right in these 100 copies has expired. The bookshop can resell or give away the books. The same holds true for the end users who acquire these copies.

Territorial limitations of the distribution right are in principle permitted and valid. For example, if a licence is granted to a publishing house in New York for the contractual territory USA, the publishing house may not publish the work in any other territories.

Problems are encountered with country-specific licences in the EU, because the principle of free movement of goods needs to be observed. The principle of "Europe-wide exhaustion" applies, i.e., the distribution right is exhausted once the work has been published in one member state (with the consent of the rights holder in that state). Further distribution within the EU or EEA is permitted even if the right in other countries has been granted in principle to other persons/business enterprises.

Rental right

Within the meaning of copyright law, rental is deemed to be any temporary transfer which serves directly or indirectly a profit-making purpose. A consideration is not required.

The author is entitled to an equitable share in the remuneration for the rental of their own works.

Right of display

The right of display is of minor importance because it is relevant for unpublished works only. Works published have lost their distribution right. The display remuneration was abolished in 2000.

Right of recitation, performance and presentation

The right of performance is the right to perform the work in public, e.g. within a recitation, a concert or by broadcast or via the Internet. The right of presentation is limited to "optical devices" such as data projectors, slide projectors but also other projections via monitor.

If a work is exhibited only among family or friends this is not considered a public performance or presentation. On the other hand, it is not necessary that somebody actually sees the work. It is sufficient that it is accessible to the public.

In Austrian court decisions, birthday parties, wedding ceremonies and other family celebrations have mostly been evaluated as "non-public" even if up to 100 guests or more are present.

A public performance is characterised by the fact that the audience has gathered at the location of the event and/or the presentation takes place in a delimitable area.

Right to broadcast

We distinguish the right to broadcast from the right of performance in that the members of the audience may be at different locations. Like all copyright, the right to broadcast follows the territoriality principle. Therefore, authorisation to broadcast has to be obtained for every country in which the performance of the work can be received.

The granting of the right to broadcast is required for radio and television broadcasting, broadcasting over the Internet, such as simulcasting or webcasting, and the like (as far as it is not an interactive communication).

Right to make available to the public (interactive communication)

This right covers the making available of works in digital networks. If for example a work is made available over the Internet in a manner that users may access it at any time and from any place (on demand), this is considered interactive communication.

Right of adaptation

The right of adaptation is the right to alter the work protected by copyright to the extent that a new work protected by copyright is created. In principle, the adaptation of a work is possible without the consent of the author. However, any (commercial) exploitation of the adaptation is subject to consent. Adaptations include, for example, translations, interpretations or remixes of a piece of music or the filmic representation of a screenplay.

Works with no copyright protection – i.e., works for which the term of protection has expired – may be adapted and exploited commercially by anyone wishing to do so.

Mere remuneration claims

In special cases, authors may not prohibit the use of their work – however, they are entitled to equitable remuneration. The most important cases are described below:

Storage media remuneration / reprography remuneration

This was originally introduced in 1980 in order to make up for plummeting sales caused by the possibility of making private copies (in particular for film and music). For each medium purchased (cassette, video tape, blank CD ...) a flat rate charge is to be paid as copyright levy.

Only recently has the long debated storage media remuneration been adopted by Parliament (hard drive remuneration/blank audio cassette remuneration). The Copyright Act Amendment has been in force since October 2015.

Reprogaphy remuneration also belongs to this area. It is added as equipment remuneration to the price of all copying machines, on the one hand, and on the other, levied as operator remuneration from large consumers (school, training centres, public libraries, copyshops, ...).

Resale right

The resale right gives the artist (or later the artists' heirs) a share in any proceeds from the resale of their original works of art where a representative of the art market (auction house, art dealer, art gallery) is involved as seller, buyer or broker.

The proceeds from the resale right are graduated and range from 0.25 per cent to 4 per cent. The higher the sales proceeds, the lower the percentage. The artist is entitled to resale remuneration staring from a selling price of 2,500 euro. The upper limit on the proceeds from resale is 12,500 euro. The reseller is responsible for the payment to the artist.

The underlying idea is that the work (often purchased at a very inexpensive price) of an artist will become much more valuable as the artist becomes gradually well known. This should also benefit the artist.