How can I take action against infringements of my copyrights?

If someone has interfered with your intellectual property through an act in a third country, the law of that third country applies if the principle of territoriality is exercised there.

Check whether the country in which the copyright was infringed has signed an international copyright treaty, such as the Universal Copyright Convention, the (revised) Berne Convention or the TRIPS Agreement. 

If they have, the territoriality principle applies. Whether and how you can defend yourself against copyright infringements therefore depends on the third country concerned. The regulations can vary greatly from country to country.

Info: In the case of infringements on the internet, such as unlawful provision (currently probably the most frequent copyright infringement), the territoriality principle requires that the legal systems of all countries where the content can be accessed are applied.

To do: Find out about the laws of the country in question and check the contract on the basis of which you authorised the exploitation of your artwork to see whether the application of the law of a particular country was agreed upon.

Since the principle of territoriality applies in all EU/EEA countries, the law of the EU/EEA country where the copyright was infringed applies.

However, if a copyright contract has been breached, you must check whether the application of the law of a particular country has been agreed upon for such cases. 

To do: Find out about the laws of the country in question and check the contract on the basis of which you authorised the exploitation of your artwork to see whether the application of the law of a particular country was agreed upon.

For the following sections to apply to the infringement of your copyrights, one of the following situations must apply:

• The non-contractual infringement of your copyright has taken place in Austria (e.g. someone has reproduced your artwork without permission and uploaded this reproduction to an Austrian website);

or

• The copyright contract that you and your contractual partner have concluded and that one of you has violated has its place of fulfilment in Austria or the closest relationship to Austria;

 or

• You and your contractual partner have agreed on the application of Austrian law in the contract that you concluded and that one of you has breached. 

Under Austrian law, you can prosecute infringements of your copyrights and ancillary copyrights under both civil and criminal law. Unlike in German law, you do not have to send a warning letter to the infringer. You do not have to—but can—sue them immediately if your rights have been infringed. However, a warning is always advisable.

As an author or ancillary copyrights holder, you have the following civil law claims:

• You can demand that the infringement of your copyright be stopped immediately and that no further infringements take place in the future (injunctive relief);
• You can demand that the illegally produced reproductions of your original work be removed (destroyed) (removal claim). In the visual arts, it is often impossible to restore or remove an alteration, for example if a picture has been partially painted over. However, as the author, you can demand that a corresponding reference to this distortion be made.
• For the unauthorised use of your artwork, you can demand a reasonable, customary fee (see the section on fair remuneration).
• You can demand that a court determines that a certain right exists (e.g. that you are the author) or does not exist (e.g. that the person you are taking legal action against is not the author) (right to a declaratory judgement).
• In some cases, you can request that the court judgement be published (e.g. in a newspaper or on a website) (publication of judgement). To do this, you must prove that you have a legitimate interest in the publication. This is the case, for example, if another person has falsely claimed to be the author of your work. 

Example: A record company has edited your musical works, reproduced them, and distributed them on audio media. As the author of the original, you can demand that the audio media no longer be produced in future (injunctive relief) and that all audio media already produced, including the master tapes used to produce them, be destroyed (removal claim). You can also demand reasonable remuneration for the acts of exploitation carried out. 

If the person knew or should have known that they were interfering with your rights, then they are at fault. In these cases, you can also demand compensation for the damage you have suffered as a result of the interference with your rights (compensation). This damage could be material (e.g. through loss of sales) or immaterial (e.g. due to the claim that you are not the author). You can also claim lost profits or the return of the profits that the other person has made through their acts of exploitation. 

Example: If you have lost a specific work order because other people have already reproduced and sold your artwork, you can demand the money that you would have earned from this order. If the person earned money from the reproductions, you can demand the return of this money.

Instead of compensation, you can also demand double the appropriate remuneration—only in the event of an infringement of exploitation rights—if the person has acted culpably. You should exercise this option if the damage is difficult to prove or is relatively minor (or has not occurred at all).

Info: If you have contractually granted a person exploitation rights, they are the rights holder. Since you have authorised them to use your work, they can also claim infringement of the exploitation rights. 

There is no "bona fide acquisition of rights" in copyright law. This means that other people can only acquire rights from the person who actually holds the rights. 

Example: You are an author and sign a publishing contract with a publisher for a collection of short stories. However, some of the short stories are not yours. Even if the publisher has no knowledge of this fact, they are committing a copyright infringement when publishing the collection because the other author has not given their consent to the publication of their work.

Infringement of copyrights and ancillary copyrights can have criminal consequences for the infringer. As copyright and ancillary copyrights are easy to infringe, the penal provisions are strict:

• If someone wilfully commits an offence, they face a prison sentence of up to 6 months or a fine;
• The law enforcement authorities only prosecute infringements at the request of the rights holder. The latter must submit the application within 6 weeks of becoming aware of the infringement and the suspected person (otherwise the claim is barred; the infringement is therefore no longer liable to prosecution).

Example: You show your copyrighted film at the cinema. A person attends a screening and records your film using a hidden camera. This person then downloads the recording to their computer and sells it on a website. This constitutes unauthorised reproduction and distribution of your copyrighted material. This person can be prosecuted for their actions upon your request.

Reproduction is not punishable by law

• for one’s own use or
• free of charge for the use of another person

because this is a free use of work.

In practice, the prosecution of copyright infringements is often difficult. This is because many infringements take place on the internet. The identity of the infringers is therefore often unknown even to the platforms, and platforms must only disclose information about their users to the authorities under certain conditions.  

Info: However, the platforms must establish mechanisms for checking copyrighted content to prevent unlawful content from being uploaded and, if this is the case, to prevent it or delete content that has already been uploaded. The person who uploaded the content as well as the person/organisation asserting the copyright claims must also be given the opportunity to submit a statement.