The austrian copyright law (UrhG) in its initial version from 1936 especially served the purpose of protecting artists from the exploitation of their works. The copyright of a work is inalienably connected to the originator (and his/her heirs), because he/she created this work personally. From a purely factual point of view no one else can be the author. However, the author is entitled to transfer his/her rights of use (authorisation of use, right of use) to other people in parts or in full. Lawyers and courts most often come in when it is about clarifying who is entitled to the added value from the authorisation of use and to what amount. Here, a copyright lawsuit can be filed. Other causes can be accusations of plagiarism or unlawful alienation and copying of the copyrighted work. Austrian copyright law applies if the author (or at least a co-author) is an Austrian citizen.
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In order to protect a work in the sense of the copyright law, it has to demarcate itself significantly from already existing comparable works as “unique intellectual creation”. The Austrian copyright law regulates the protection of literary works, works of musical art, works of visual arts (also photographs), works of cinematic art and databases.
Furthermore, the copyright law includes the so-called “related rights” such as the simple protection of photographs (for photos which are not works of art), the rights of the exerting artists (ancillary copyright) and the protection of simple databases.
But also the design protection law (MuSchG) as well as the “Geschmacksmusterrecht” (right of aesthetic model) which protects the design of products, the utility models act (GMG) for technical inventions where a patent cannot yet be applied for and the patent law for inventions also contain regulations which serve the protection of the copyright.
If the author or sole holder of the right of use becomes aware of an infringement of the copyright, he can request the violating party to refrain from these actions and if necessary to re-establish the original state. This request can be emphasised if it is issued by a lawyer. In some cases, there is actually real material damage, most often however only a theoretically calculated loss of earnings. On this basis, a claim for damages can be made, provided that the question of guilt due to the infringement of copyright law has been solved in favour of the author. Also there are legal claims of enrichment which are based on the usual usage fee.
Usually, the warning is accompanied by an offer for a settlement out of court, in order to avoid further costs due to a trial. If the violation of the copyright has been proven, this shortened procedure can indeed bear advantages for both parties.
Unfortunately, however, a separate line of business has developed around the “warning”, which aims at searching for innocent internet users who have violated the copyright, and sometimes even to lure them into a “warning trap”. If you don´t feel guilty and are suddenly confronted with disproportionate claims, you should by all means consult an experienced lawyer. Even if the warned person is at fault, there are better chances of achieving a satisfactory settlement with a lawyer as negotiator.
Due to the spreading of the internet and especially the world wide web, there seem to be unlimited amounts of digitalised works available. If texts, pictures, audiofiles (mp3) or videos (mpeg, streaming) are provided publicly without a considerable limitation of access, these may basically also be consumed in the course of your own use without limitation and also saved as a backup copy for private use. Any further use such as the passing on (even free of charge) to third parties or the re-publishing on a website or on a social media platform (facebook, youtube, Instagram, etc.) requires the consent of the author resp. main holder of the right of use.
The cross-border character of the internet makes it difficult to fight out infringements of copyright laws across national borders. Even within the EU there has not yet been a clear harmonisation in the sense of a European Copyright Law, not to mention the differences between the American copyright law which gives priority to the commercial aspect as opposed to the question who the author is.
Apart from companies´ commercial interest, right from its beginnings the internet is based on the ideals of the “sharing community” (sharing everything with each other) and the “open commons” (everything belongs to everyone). From this, open licence models (key words: open source, create commons, GNU, GPL etc.) especially for software and digital products have derived. Here, a breach of law in the sense of a license violation can be committed, if works that are actually free-of-charge (software) are passed on for money or if they are further developed without stating the original author.
As the “website” is not yet included in the works catalogue of the copyright law, a website itself as a whole basically is not yet regarded as a work that needs to be protected. However, different contents (texts, photos, graphics, multi-media elements) or underlying software (source codes, applets, plugins etc.) can indeed be considered as works in the sense of the copyright. For the editor of a website it is necessary to be able to provide the according rights of use (license agreements, approvals, authorisations etc.) as long as he/she himself/herself is not the author of the works mentioned above, in order to defend him/herself from claims for damages or deriving from competition law. It is advisable to issue a statement regarding copyright and the used works in the imprint and to state rules for the citing or reuse of contents of the website.
In copyright law it is not necessary to demand omission from somebody before suing him/her. It is assumed that someone who violates the copyright law once will do so again and thus, there is danger of recurrence. Thus, the danger of recurrence also exists after immediate termination of the violation. The defendant would have to prove that due to extraordinary circumstances there is no longer any danger of recurrence and thus, the action for injunction was not necessary.
Attention: In copyright law there is a strict liability – at least concerning the injunctive relief and removal – which means that the violator does not have to know that he/she is violating third parties´ rights.
There is no general valid answer to that question. This is about the protection of a personal right, the so-called “right in one´s own picture”. If the circumstances ensure this right, consent must be given by the person (respectively all persons) on the photo.
According to § 78 UrhG, pictures of people may not be published if thereby “legitimate interests of the depicted person are infringed”. However, this term was not determined in greater detail by law, which is why there is a large number of individual decisions. First of all, it should ensure that everyone is protected against misuse of his/her depiction in public, especially in the form of public humiliation and degradation. Photos of persons may not be presented in a negative context. This can refer to the picture in connection with a certain text. The term “negative context” is interpreted widely. Already the possibility of a false interpretation is enough to infringe the legitimate interest of the depicted person and the publishing thereby becomes inadmissible. On the other hand, it is not up to the depicted person´s subjective feeling, but an objective standard must be applied. If no legitimate interest in the injunction can be recognised, there is no injunctive relief.
The delimitation whether there is injunctive relief due to legitimate interest is not defined in detail. This makes the assessment of the possible outcome of a procedure quite difficult and increases the financial risk for the litigants. A guideline could be to ask yourself whether there could be any objective reason why the person could be against the publishing in this concrete form.
Deviating regulations apply to public figures. As from May 2018, the reinforced regulations of the Data Protection New Act must be considered.
More on this topic: Data Protection Law