11.01.2022
With the Federal Law Gazette I 244/2021, the much-discussed EU Directive on copyright in the digital single market was implemented into the Austrian Copyright Act on the last day of 2021, approximately half a year late (see also https://lsr.at/de/news/newsdetails/dkl/richtlinie-ueber-das-urheberrecht-im-digitalen-binnenmarkt-mit-06062019-in-kraft/).
The implementation of the directive entails a far-reaching amendment of the Copyright Act, in particular it will lead to a redesign of the copyright contract law, the introduction of new free uses of works (for example concerning "text and data mining" and "digital uses in teaching and learning"), publishers will receive a share in the statutory remuneration claims of authors and a new ancillary copyright will be created for press publishers with regard to "press publications".
A key point of the amendment is the implementation of Article 17 of the Directive, which has been criticized from many sides, concerning the liability of providers of (certain) online platforms for copyright infringements by their users (keyword "upload filters"), whereby the already extensive and complex provisions of the Directive have become even more complex in the context of implementation into national law.
As part of the implementation of Article 17 of the Directive, a new free use of works for “quotations, caricatures, parodies and pastiches” was created (see Section 42f Paragraph 2 of the Copyright Act), but this free use of works is limited to the use of works via “large online platforms”. It is regrettable that the legislator did not seize the opportunity presented here in this amendment and create a general exception for caricatures, parodies and pastiches (for all exploitation rights) – the need for such a general regulation has been evident for several years (see also https://lsr.at/de/news/newsdetails/dkl/karikaturen-parodien-oder-pastiches-als-freie-werknutzungen-im-urheberrecht/).
The 2021 Copyright Amendment (like the Directive on Copyright in the Digital Single Market itself) is based in many places on existing provisions of the German Copyright Act. In particular, in copyright contract law, there are now many concepts and provisions that are already known from the German Copyright Act and the legislative materials also explicitly state in several places that borrowings have been made from the provisions of the German Copyright Act - this gives hope that by relying on German case law and doctrine, users of Austrian law can find solutions to questions of interpretation that may arise in the future.