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Amendment to the Copyright Act 2021 - Why copyright concerns us all



Michael Froner

Attorney at Law

The Amendment to the Copyright Act 2021, which was recently submitted for review, shall (somewhat delayed) transposition the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market into national law and thus a modernization of the Austrian Copyright Act (long demanded by many stakeholders) is just around the corner.

Amendment to the Copyright Act 2021 has the declared aim of adapting copyright to the digital and cross-border environment, improving licensing practices and ensuring broader access to content.

A major cornerstone of this is that large online platforms are held more accountable. A large online platform is a provider of a for-profit information society service that plays an important role in the online content market and whose main purpose is to store and make available to the public a large amount of works uploaded by its users..

Large online platforms themselves engage in acts of utilization through the upload of copyrighted works by their users and must therefore obtain the authorization of the copyright holders. They shall be liable to pay damages to the aggrieved copyright holders if they fail to prove that, in accordance with the principle of proportionality, they have

  1. made every effort to obtain the authorization of the copyright holders;
  2. made every effort, in accordance with high industry standards of professional care, to ensure that copyrighted works are not made available without authorization; and
  3. upon receipt of a duly substantiated notice from a copyright holder, immediately block access to or remove from the online platform any work made available without authorization and prevent future uploads.

However, such measures shall not have the effect of preventing the uploading of works that do not infringe copyright, even if the use of the work is permitted in the context of free use of works (freie Werknutzung). With some exceptions, the automation-assisted blocking of small excerpts of a work is not permitted. The user can also indicate when uploading that the use of the work – e.g. for parodies, critiques or reviews – is permitted. This is intended to protect freedom of speech and the exceptions and limitations of copyright.

There have been numerous concerns regarding Directive (EU) 2019/790 with regard to such "upload filters". In the Amendment to the Copyright Act 2021, it is envisaged that large online platforms will have to establish a complaints procedure through which users can take effective and expeditious action against unauthorized blocking or removal of their content.

In the event of violations of these requirements, the Austrian Communications Authority (Kommunikationsbehörde Austria), as the supervisory authority for large online platforms, may impose fines of up to EUR 1 million.

The Amendment to the Copyright Act 2021 also aims to introduce copyright contract law and strengthen the position of copyright holders. In particular, they are given the right to terminate long-term agreements: If, for example, an author has granted a right to use a work in return for a lump-sum payment, he or she is entitled to utilize the work after 15 years have elapsed. The granted right to use the work (Werknutzungsrecht) is replaced by a permission to use the work (Werknutzungsbewilligung) for the remaining term of the contract.

The copyright holder shall also receive an appropriate and proportionate remuneration. If the agreed remuneration later turns out to be clearly disproportionately low compared to all the income from the utilization of the work, the copyright holder shall be entitled to additional remuneration. In this context, there is also a duty to provide information on the part of the contractual partner, who must inform the copyright holder once a year about the utilization of the work and the income generated therefrom.

Producers of press publications are also to be protected by the Amendment to the Copyright Act 2021. A service provider who produces a press publication on his own initiative and under his editorial responsibility and supervision has the exclusive right to reproduce it for online use and make it available to the public. A press publication is a collection of mainly literary works of a journalistic nature, which appears as a single issue of a periodical publication or which is regularly updated under a uniform title and serves the purpose of informing the public about news or other topics (e.g. newspapers, journals or magazines).

The right of the producer of a press publication expires two years after the publication and cannot be claimed to the detriment of a copyright holder whose work is included in the press publication. This copyright holder therefore continues to have the right to utilize his or her work independently from the press publication.

In addition to the already applicable free use of works (freie Werknutzung, the right of the producers of press publications does not include private or non-commercial use by individual users. The setting of hyperlinks to press publications also remains permissible.

Austrian copyright law is facing a considerable upheaval, which will present technical and legal (and in case of violations also punishable) challenges, especially for large online platforms.


Michael Froner

Attorney at Law