Granting of Rights of Use / Copyright Contract Law


As previously mentioned, copyright (inter vivos) is not fully transferable. In other countries, in particular the USA, a full transfer is possible.

Under Austrian law, there is a possibility to grant the rights of use of a work, which comes quite close to a transfer.

The publisher's right of publication is, for example, a right of use of a work. It is granted to a publisher by contract. Holders of publisher's rights of publication may bring an action against copyright infringements independently – not only on behalf of the author. It is an exclusive, transferable and inheritable right, and therefore even the authors are no longer allowed (within the framework of the contractual agreement) to use, exploit or transfer the right of use of the work or to grant non-exclusive permissions of use of the work to others. If the contract for publication is not concluded for the term of protection but only a fixed period of time, or the right of publication expires in another way, the rights granted automatically revert to the author after expiry.

Example

A writer writes a novel. She is the author of the work. As soon as she enters into a contract of publication concerning this novel, the right of publication accrues to the publisher of the novel. The publisher may dispose freely over the work under the contract of publication and grant licences to other publishers.

Authors may also grant a non-exclusive permission of use of a work. It may be limited in respect of space, time and content at the author's discretion – it is only important that the parties clearly specify by contract which uses are permitted.

Under Austrian copyright law, there is no requirement as to form and contractual freedom (except for very few exceptions) – which means contracts may be formulated in any way and made orally, in writing or implicitly (implied – inferred from the acts of the parties).

Example

If a photographer is booked for a photo shooting to produce photos for a catalogue, the rights of use for this catalogue are deemed granted implicitly – even if not agreed expressly by contract.

In copyright law as well, there is a limit marked by the "violation of moral principles". This means, contracts showing an extreme disproportion between performance and consideration may be invalid (as may be oppressive contracts).

The rules of interpretation are also important for contracts under copyright law. Often not every detail is finally agreed by contract. The law as reflected in court decisions tends towards an interpretation favouring the author and in case of doubt, it is assumed that the rights remain with the author. Although this is not expressly laid down by law (in contrast to Germany), it is assumed that, in case of doubt, the acquirer of the rights of use has not acquired more rights than those which seem necessary for the intended use of the work (theory of ultimate purpose).

There are also some special rules governing interpretation. For example, in case of doubt a non-exclusive permission to use a work does not include the right of adaptation. The acquisition of a copy of the work, e.g. a painting, in case of doubt does not include any rights of use of the work.