Austria has implemented the Incidental inclusion (Art. 5.3(i) InfoSoc) exception in Section 42e of the Federal Law on Copyright in Literary and Artistic Works and Related Rights. The national exception closely resembles the EU exception.
Implementation summary:
This exception allows for the reproduction, distribution, broadcasting, making available to the public and use for public lectures, performances, and demonstrations of works if they are used only accidentally or casually and without reference to the actual object of the exploitation.
Implementation details:
Beneficiaries:
- any user
Purposes:
- no specific purpose (the use has to be incidental)
Usage:
- reproduction
- distribution
- broadcasting
- making available to the public
- use for public lectures, performances, and demonstrations
Subject Matter:
- works
- photographs
- performances
- phonograms
- film fixations
- broadcasts
Compensation:
- no compensation required
Attribution:
- no attribution required
Introduced/last updated: 01 October 2015
Remarks: The exceptions and/or limitations in Austrian copyright law are formulated as 'free uses' of works and other subject matter. The 'incidental inclusion' exception applies to performances (§71(6)), phonograms (§76(4)) and broadcasts (§76a(3)). Austrian case law follows the German interpretation of incidental inclusion and accepts that it must be insignificant, meaning that removal or replacement of the work used coincidentally has minor or subordinate importance with a view to the overall impression generated by the reproducing work (see Judgment of 26 September 2017, 4Ob81/17s).
