Federal Law on Copyright in Austria

Copyright protects the rights holder's intellectual property in a work as a whole and to its parts. Mere ideas do not enjoy copyright protection.

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

The term literature covers, within the meaning of copyright law, works of language of any kind, including computer programs, theatrical works (body language) and works of science or education which consist of pictorial representations in two or three dimensions unless they constitute works of art.

In addition to paintings and drawings, works of art include works of architecture and applied art, as well as works of photography.

Works of music, or musical works, enjoy protection irrespective of how they have been generated (instrument, computer-generated sounds, human voice, ...). The individual elements of arrangement (melody, harmony, rhythm, ...) and their combination may be original and therefore also protected by copyright.

Cinematographic works (motion pictures) of any kind are protected by copyright and include, inter alia, silent films, cinematographic works accompanied by sound, video films, and also computer games. Screenplays are works of literature. The filming of a screenplay is considered its adaptation.

Good to know

Particularity in copyright law regarding commercially produced films

Until recently, Austrian copyright law contained the 'statutory assignment' rule concerning commercially produced cinematographic works. It automatically allotted exploitation rights to the film producer, that is to say to those who provided the economic and organisational services within a business enterprise. This rule was changed by the Copyright Act Amendment 2015. In case of doubt – unless otherwise agreed – film producers are provided with an exclusive right of use. The rights to remuneration are shared equally by the film author and the film producer.

In order to be copyrightable, a work has to be a characteristic (original) intellectual creation objectively interpretable as art and in principle perceptible by the senses. Generally these terms are construed very broadly.

The rising of copyright under Austrian copyright law is not subject to any form requirement. It rises from the creation of the work. In contrast to US copyright law, no fixing in a tangible medium (e.g. recording of a musical work on a phonogram or notation of the piece of music) is required. Neither is it relevant whether a registration is filed (for example, with a collecting society) or a copyright notice placed on the work.

A copyright notice is still preferable – especially in times of digital networking – in view of foreign regulations and for clarification that it is a protected work. Furthermore, the notice triggers the presumption of authorship (Sec. 12 Copyright Act).

A correct copyright notice looks as follows:

© + Name of rights holder + year of initial publication.

Not copyrightable are thoughts, ideas, methods, systems, technical solutions, mathematical formulas, theories, doctrines, insights, an artistic style or other principles of form and the like. The reason for this is the requirement of availability to the general public, such that artists can continue to create freely.

Adaptations are subject to the same copyright protection as original works, as far as they are original. An adaptation may be produced but may be exploited only with the consent of the original author.

An adaptation is understood to be a modification of the original work. This includes translations, filmings of a novel or screenplay, arrangement of works of music, the remix of a song, but also the partial use of an existing work in order to create a new work, as long as it is not a quote.

Court decisions in this field have been very strict. With musical works, it is sufficient that there is a "recognisable similarity according to the listening impression".

The creator of the work is the holder of the author's rights. Under Austrian copyright law, this can only be a natural person, i.e. a human being. Legal entities (companies, institutions,...) cannot be authors, even if commissioned works are concerned. But legal entities may hold rights of use in the creation protected by copyright. The situation is different in U.S. copyright law where legal entities may be holders of author's rights. In the case of work made for hire, it is even assumed that copyright accrues to the party commissioning the work – unless other contractual agreements have been made.

According to the presumption of authorship (failing proof to the contrary), the person who is designated as the author in the exploitation is regarded as such.

Please note

In practice, it is often difficult to furnish proof to the contrary. Artists have developed methods to facilitate this. You may deposit the original work or a copy (printout, photo, CD,...) with a notary, or send it to yourself by post and keep it without opening it (the postmark serves as proof to establish priority – i.e., the chronologically first creation).

In the case of anonymous or pseudonymous works, for which no author is named, the editors or publishers are considered administrators of the copyright.

You can create works also jointly, not just alone. Where the work is an indivisible whole, it is of joint authorship. All joint authors need to agree to any exploitation. But each joint author is separately entitled to institute proceedings for infringement of copyright.

Combined works are divisible as is evident by the name alone. Each part is a work in itself and does not give rise to joint authorship, and only the exploitation is handled jointly.

Example

Two musicians write a melody for a song together, and joint authorship arises.

Two musicians write a song together, for which one composes a melody and the other writes the lyrics. It is a combined work. No joint authorship arises.