The (new) Provisions On Unknown Exploitation Forms And The Right Of Second Exploitation In Copyright Contract Law

Published date23 December 2022
Subject MatterIntellectual Property, Copyright
Law FirmSchoenherr Attorneys at Law
AuthorMr Dominik Hofmarcher and Roland Vesenmayer

New provision on unknown exploitation forms (Section 24c para 2 and 3 Austrian Copyright Act)

To protect the author, the provision limits the possibilities of granting rights for as yet unknown forms of exploitation (since the author cannot foresee the economic relevance at the time such rights are granted). As a reminder, a form of exploitation describes the scope and "field of use" of exploitation rights. Accordingly, a contract granting right to unknown exploitation forms must be in writing and the author has a right of revocation that cannot be waived in advance.

What is unknown?

Whether a type of exploitation is known is not only determined by the fact that the technical possibilities for it exist, but also by the economic relevance. New forms of exploitation usually come along together with technical revolutions and ground-breaking inventions that would happen frequently, but not every day. Therefore, unknown forms of exploitation are those that may be assumed by technical experts but are not known to the average author or the general public.

Written form requirement

Written form is required for the granting of rights to unknown forms of exploitation. This means that, in principle, a handwritten signature or qualified electronic signature is required from both parties.

Revocation right

In addition, the author has a right to revoke the grant of rights at any time insofar as it relates to unknown forms of exploitation. Such a right cannot be waived in advance. This is intended to give the author the opportunity to reconsider their earlier decision as soon as the new form of exploitation has become known.

Naturally, the addressee of this revocation will initially be the author's contractual partner. If the contractual partner has permissibly transferred the rights, the author may revoke the agreement with the acquirer. Alternatively, they may continue to adhere to their contractual partner, because authors are not obliged to follow a chain of rights transfers. The revocation leads to an ex nunc loss of the rights granted in relation to the new forms of exploitation.

However, the author's right of revocation will expire three months after the contractual partner has sent a notification of the intended commencement of a new form of exploitation to the author (at the last known address). Thus, the contractual partner may force the author to decide whether to revoke or not.
In the absence of notification, the right of revocation remains in force and there...

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