Quick guide to copyright law

07.07.2022

In times of unlimited distribution of copyrighted works, there are repeated infringements on copyright or image protection. In short, the following legal framework must be observed when using the works of others (photographs, images, texts, etc.), whether in a private or professional context.

• Photos, graphics, paintings, texts, sculptures, music, etc. are almost exclusively protected by copyrightThis also applies to “everyday” works and “old”[1] “Snapshots”, “doodles”, children’s drawings, school photos, maps and aerial photographs are all protected by copyright. The fact that a particular work is already widely available on the Internet or is already used by many other media does not change the existence of copyright protection.
• Any use (reproduction, publication, broadcast, etc.) of copyrighted works without the consent of the rights holders infringes the rights of the rights holders (authors or manufacturers) and may result in Action for reasonable compensation, damages and injunctive relief Use of another's work occurs in particular when another's work is made available for download on the Internet. The amounts claimed regularly reach five-figure amounts.[2] Such lawsuits also cause high costs[3] and can only be avoided in the rarest of cases. Copyright is property right!
• The Publication of works (e.g. photos) by the rights holders themselves (for example on the Internet on your own Facebook, Twitter or YouTube account) does not constitute consent for the use of these works by others. The use of such photos without the consent of the rights holder is also illegal.
• The trust that the person who permits the use of works is actually the rights holder and can therefore permit the use can, is not protected. No one can transfer more rights than he himself hasIn other words, there is no good faith in copyright law.[4]
• It should be noted that freely agreed The extent to which a work can be used can be determined. The rights holder can, for example, set time limits (use on a website for a period of 2 weeks only), content limits (use only in connection with a scientific paper on animal diseases in printed books) and geographical limits (publication only on websites that can only be accessed in Austria, for example). In case of doubt, agreements on the use of copyrighted works should be interpreted in favor of the authors in individual cases.
• Especially with the “Creative Commons“ on the Internet, extreme caution is advised. Firstly, there is no certainty that the person offering a work in this way actually holds the rights to the work offered (see point 4). Secondly, there are different types of Creative Commons license. Not every Creative Commons license allows every use of a work. Some of these licenses only allow use for non-commercial purposes, others only allow the use of a work if the work itself or the publication into which the other person's work is to be integrated is made available to the public via a specific Creative Commons license.
• Whenever a work is used, the To identify the author and possibly also the manufacturerThe author decides for himself how he would like to be referred to. The fact that the author does not use the author's name when publishing his works does not constitute a waiver of the author's name. Ideally, a documented (!) contractual agreement should be made with the author regarding the author's name, in which the author specifies how he would like to be referred to.
• It is generally not permitted (even in the case of a permitted use of another person’s work) to make unauthorized Changes at the factory In the case of photos and graphics, this particularly applies to cropping to change the shape of the images (from landscape to portrait, using only a section), changing the color, and inserting new elements (text, graphics, etc.). It is also important to ensure that works are not used in a problematic context (such as pornography) (without the explicit consent of the author).
• The Copyright Act allows Exceptional cases and under certain circumstances, uses specifically described in the law even without the consent of the rights holders. These so-called “free use of works“ are, however, interpreted extremely narrowly and the correct application of these provisions requires legal expertise.[5] In particular, when using third-party works in a commercial context, many free uses of the work are not applicable from the outset.
• One Linking (also in the form of an embedded link) to third-party works canmay also be permitted without the consent of the rights holders. However, there are a few things to consider:

1. links may only be made to content that is freely accessible on the Internet (in particular, there may be no circumvention of payment barriers or technical devices that are intended to prevent links). Free access is generally only available to anyone on the Internet without having to register anywhere and without entering any password, without any special technical knowledge.
2. links may only be made to content that has been made available legally on the Internet (i.e. the linked content may not have been made available on the Internet without the consent of the author)
3. In particular, in the case of embedded content, the work must not be placed in a detrimental context (e.g. linking to another work in an advertisement for potency drugs),
4. From a legal point of view, a link only exists (regardless of the technical design) if the linked work can no longer be accessed via the link as soon as the work is removed from the linked source page.

• At the Linking images showing people, it is particularly important to note that linking content in a new medium can only reach a broad public. This can at best infringe on the personal rights of the people depicted. This can be the case, for example, if family photos from a private blog or a Facebook page are embedded on a website with an extremely wide reach. In short: the rights of the people depicted must also be observed (see, for example, Section 78 of the Copyright Act).

[1] In principle, copyright protection for a work lasts up to 70 years after the death of the author (photographer, graphic artist, writer) – so it can be assumed that even works from, say, 1900 are still protected by copyright (if a painter completes a painting at the age of 20 and dies at the age of 90, then copyright protection for this painting ends 140 years (!) after completion of the painting), cf. Section 60 of the Copyright Act.

[2] This is especially true if the illegal use is only discovered after several years.

[3] The legal fees and court costs to be reimbursed to the plaintiff alone usually amount to more than €5,000.00.

[4] The argument that one believed in good faith that the author of a work had permitted its use cannot therefore be used to avert a lawsuit by the actual rights holder.

[5] For example, it should be noted that the free use of the “Reporting on daily events“ (§ 42c UrhG) not also includes the use of a third-party photo that depicts the day's event itself. Another example is the so-called "panorama exception" (§ 54 para. 1 no. 5 UrhG), which only allows the use of works of architecture or works of fine art within certain limits if these "were made to be permanently located in a public place“.