The (new) Transfer Of Rights By Purpose In Copyright Contract Law

• Published date: 05 December 2022
• Subject Matter: Corporate/Commercial Law, Intellectual Property, Contracts and Commercial Law, Copyright
• Law Firm: Schoenherr Attorneys at Law
• Author: Mr Dominik Hofmarcher and Roland Vesenmayer

Introduction

Interpreting copyright contracts based on their purpose is not new in Austria. After all, this teleological interpretation is an essential part of every contract analysis and the theory of transfer by purpose developed in Germany has always been an integral part of Austrian jurisprudence. Accordingly, the extent of rights granted does not, in case of doubt, go beyond what is necessary for the practical purpose of the intended use of the work.

Moreover, the person commissioning a work is in any case implicitly granted the rights to use the work for the purpose for which the work was commissioned. If the commission to use the work would only make sense if the commissioner alone is entitled to use the work, the rights granted are exclusive.

While the provision merely codifies existing case law in this respect, the new law goes beyond this previous case law.

Content of the provision

• Specification obligation (Sec 24c para 1 first sentence)

For all contracts on the granting of rights of use, the provision provides for a kind of obligation on the part of the acquirer of the rights to expressly and individually designate the forms of exploitation covered by the licence. If such forms of exploitation are not expressly and individually designated, the purpose of the contract as understood by both parties will determine which forms of exploitation it covers. This is not a rule of doubt. Even if it is clear that the parties wanted to cover all forms of exploitation, the scope of the licence is restricted according to the purpose of the contract, if the forms of exploitation are not expressly and individually designated.

However, this does not relate to a specification of exploitation rights like the right of reproduction, distribution right, communication to the public, etc.), but the forms of exploitation. A form of exploitation describes the scope and "field of use" of exploitation rights.

There is no formal requirement for the specification; the forms of exploitation can therefore also be individually and expressly designated orally.

• General rule of doubt (Sec 24c para 1 second sentence)
• In addition, the law stipulates that (in case of doubt) it should be determined on the basis of the purpose of the contract whether exclusive or non-exclusive rights have been granted, how far the rights granted extend and what restrictions they are subject to. This is what Austrian courts have previously done anyway.

According to the legislator, the adoption of...