Coypright Directive has taken effect in Austria


New copyright law: EU law directly applicable as of today

The much-discussed Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market should have been implemented by Austria by today. This did not happen. Nevertheless, as of today we have a new legal situation.

 

With the so-called "Copyright Directive" (Directive (EU) 2019/790), copyright law is to be adapted in parts to the current state of the art. The Directive entered into force on 6 June 2019 and should be implemented by Austria in a transitional period of two years. The reason for this is that directives (in contrast to European regulations) only provide a framework within which the member states themselves must determine whether they want to implement only the "basic variant" or the directive "more strictly".

 

In the case of the Copyright Directive, implementation should have taken place by 7 June 2021. In Germany, for example, the copyright reform was only enacted (on time) on 28 May 2021. In Austria, on the other hand, only the first working group drafts have been published so far. Thus, the deadline of 7 June 2021 for the implementation of the Directive has passed unused.

 

In this case, according to European case law, from the time when the transposition should have taken place, the Directive is in principle directly applicable, i.e. like an EU regulation, provided that the provision is, inter alia, sufficiently clear and unambiguous. This is probably the case at least for some oft he provisions of the Copyright Directive. As soon as the Austrian legislator adopts a law (or an amendment) to transpose it, this will - as far as it is in conformity with the Union - replace the direct application.

 

In principle, the Directive does not turn Austrian copyright law upside down and in some points - such as the possibility of recalling rights in the case of non-use by a publisher - corresponds to the Austrian legal situation that has long been in force. What is new, however, are the provisions regarding online platforms, according to which the use of works on these platforms for the purpose of caricatures or parodies is now generally permitted; as well as the information obligations regarding sub-licensees, which must now be granted to the original licensor.

 

In any case, it remains interesting to see how much use will be made of the Directive's leeway and how strictly (or less strictly) the Austrian legislator will implement the Directive. As soon as a concrete implementation proposal is available in the form of a government bill, we will report back here.


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