Copyright limits in respect to content (Free Use)

---

In certain cases, there are statutory exemptions from the exploitation rights under copyright law. These vary – depending on the category of work concerned. But there are also general free uses of work which apply to all categories of works. As copyright is a protective right, the scope of application for free uses of work is deemed rather narrow. You should also bear in mind that the burden of proof for the lawful free use of a work always lies with the user in the event of a lawsuit. Moreover, the free use of a work must not impair the author's nonmaterial interests or conflict with moral rights. This is the reason why generally abridgements, alterations and additions are not permitted.

For free use of works, compensation claims are also due.

General free uses of work:

Transient or incidental reproduction

A reproduction is regarded as a free use of work if is done in a transitional or incidental manner and only serves the purpose of transmission and no other purpose. A clear example of which is PC or Internet use,  as a copy is automatically saved to the RAM.

Reproductions for your own private use

This type of use of a work applies to all media materials but may under no circumstances (directly or indirectly) serve commercial interests or be made available to the public. The use of an obviously illegal source also rules out a free use of works. There is no legal limit on reproduction for your own private use, however prevailing opinion assumes approx. 5-7 copies, depending on the purpose of reproduction.

In certain cases, particularly for schools and universities, public collections and  media observation, there are even further exceptions.

Excluded is the reproduction for your own use of sheet music, entire books or journals. It is also not permitted to copy entire buildings.

The reproduction for own use by third parties is also permitted within limits, however, only on request – and not as a standing or advance order. The reproduction may not however, be compensated.

In three special cases, you are even permitted to make a reproduction for others for compensation:

• Copying of a work of music or literature
• Reprographic reproduction, i.e., the classical copying on paper (e.g. in a copyshop)
• For the purposes of media observation

Hence, the free use of works mainly refers to reproduction. Distribution rights are not included. Meaning, making available to the public is still not permitted (e.g. upload of a protected work in a social network).

Reporting on current events

This right of free use of works does not only include reproduction, but also distribution, such as by public communication, by broadcasting or making available. The uses of works published in a report on current events are permission-free. The term "current event" is to be narrowly interpreted. The permission-free use of works in the coverage is only allowed if the event takes place on the same day or shortly before that day. Pre-event coverage is particularly not included.

The works as such may not be the object of the report. It rather refers to works which are perceivable within the coverage. Cultural events may also be current events.

Right of quotation, caricatures, parodies and pastiches

A work published or a work made available to the public with the consent of the author may be reproduced or distributed for quotation purposes as far as the use to that extent is justified by a particular purpose. The right of quotation applies to all categories of works, but there are still special provisions or detailed regulations that apply to certain work categories. For scientific works an extensive "large" quotation is permitted. Generally the following applies: The quotation must be accurate and complete and serve a supporting function, hence it must be necessary (for understanding). It may only be quoted to the extent required. Simply "embellishing" articles or academic papers is not covered by the free use of works. Furthermore, quotes must always be provided with a correct indication of source.

A published work may moreover be broadcast or made available to the public for use for the purpose of caricatures, parodies or pastiches via a major online platform (§ 18c UrhG) and reproduced for these purposes.

Public communication in education

The public showing of cinematographic works for educationalpurposes is permitted in schools, universities and other educational establishments. The same now applies to the provision of digital content.

Public communication in certain business enterprises

In businesses selling film and audio recordings, works may be communicated to the public as needed. This must be preceeded by a request from the customer. For example, it is permitted and quite common that turntables and CD players are made available in record stores in order for potential buyers to listen to music before deciding what to buy. This does not however include the shop's background music played over their audio system.

Public showings in hotels and inns

Accommodation establishments which means hotels, guesthouses and the like may show films for their guests as long as the Austrian or German language release is at least two years back.

Use of film and audio recordings in libraries

The use in libraries serves only the purpose of viewing and listening on site and is limited to two simultaneous uses.

Incidental works

Works may reproduced and distributed (e.g. by broadcasting) if they are used incidentally or by coincidence and unrelated to the actual exploitation of an object.

For people with disabilities

The representation of the work must be in a form accessible for people with disabilities (e.g.: braille).

Official use

This is primarily intended for the preservation of evidence, including the copying and digitisation of official legal and lawyers' documents.

Media archives and cultural heritage institutions

Libraries or museums open to the public, archives or institutions active in the field of film or audio heritage (cultural heritage institutions) may reproduce or have reproduced works permanently held in their collections for the purpose of their preservation, regardless of the format or medium.

Media archives are scientific public-law institutions of the federal government which establish collections of audiovisual media and do not pursue any commercial purposes.

Text- und Data-Mining

Anyone may reproduce a work for a research institution or for a cultural heritage institution in order to use it for the automated evaluation of texts and data in digital form for scientific or artistic research and to obtain information on, inter alia, patterns, trends and correlations, if they have lawful access to the work. Individual researchers are also entitled to make such reproductions, provided this is justified for non-commercial purposes (§ 42h UrhG).

Orphan works

Publicly accessible institutions that collect works may, under certain conditions, produce copies of their own works and make them available to the public if no person is known to be authorised to reproduce and make them available (§ 56e UrhG).

Unavailable works

A cultural heritage institution may reproduce, broadcast or make available to the public an unavailable work from its holdings in order to make it accessible on a non-commercial website if these rights are not administered by a collecting society and further certain conditions are met (§56f UrhG).

Particular free uses of works:

For the individual fields of copyright, there are particular free uses of work. The most important cases are described briefly below:

Music

Particular to the field of music, is the freedom of performance. Pieces of music released may, in some cases, be performed publicly  For example, in church, at military or civic (especially dignified) occasions, or wherever the audience does not pay admission fee or even make a voluntary donation and the event does not serve a profit-making purpose. Charity events are included providing that the performers are not paid.

Fine arts

The freedom of visitor catalogues is worth mentioning. Owners of collections may reproduce images of original works completely or at least comprising whole sections in a catalogue as far as necessary to promote visits. The same holds true for the freedom of auction and sales catalogues. Another exception refers to the reproduction of portraits. If it is a commissioned work, it may be reproduced also by third parties and against consideration.

Computer programs

Software is also protected by copyright. However, the provisions on the personal copy do not apply. There are special regulations for computer programs because even during the normal use of a program, reproductions are made on an ongoing basis. Therefore, the user is authorised to reproduce and adapt the program as long as the user has acquired the program lawfully and uses it for the intended use. Furthermore, debugging operations by the user or an agent are covered.