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Preliminary austrian national report
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| bet | 2/5 | | Sana | 21.09.2020 | | Hajmi | 126,5 Kb. | | #11524 |
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A web site may be protected as a collective work under § 6 Austrian Copyright Act ("UrhG").
Collection of links on a web site can be protected as individual intellectual creations by the copyright law insofar they correspond to the indicated criteria, i.e. that they are well chosen, commentated, are updated and included in a systematic organisation. Databases are thus protected on the one hand as collective works (Section 6 Copyright Law) if they constitute an individual intellectual creation by way of their selection and organisation "Datenbankwerke" (Section 40f (2) Copyright Act).
The copyright of the database work belongs to the producer (employer) of the database (Kilches, Urheberrechtsnovelle 1997 - neuer Schutz für Datenbanken, RdW 1997,710). He is granted the economic rights enumerated in the copyright law, i.e. reproduction, distribution, rental and borrowing, public exhibition, broadcasting and public performance (Laga, Rechtsprobleme im Internet, 318 ff.).
According to Section 76c Copyright Act a database is granted on the other hand copyright protection if for the obtaining, verification or demonstration of the contents a substantial form and amount of investment was necessary. The protection of Chapter IIa Copyright Act is independent from the fact that the database per se or whether its contents are granted copyright protection or protection under other specific legal provisions (Section 76 c (3) Copyright Act). The owner of the sui-generis copyright protection for databases has the exclusive right to reproduce, to amend, to broadcast or to perform in public the whole or parts of the data bank (Section 76 d Copyright Act). The copyright in a database work and the protection right granted to a database per se are completely independent from each other (Laga, op. cit., 320).
The author of a work thus has the exclusive right to make reproductions of its work (Section 15 or Section 76d Copyright Act). If this right is infringed he has claims of damages and injunctive claims on the basis of Section 81 and 86 to 89 of the Austrian Copyright Act against the infringer. The person that – through the setting of a hyperlink to foreign web site enables the access to a copyright protected work (Sections 1 to 6 Copyright Act) does not make a reproduction of the work himself. The link is nothing else than the indication that a specific content can be found on another location in the net - without necessarily specifying where the location is exactly – together with the technical help to access this location immediately. This does not infringe the reproduction right. only the downloading through the user on its own hard disk constitutes a reproduction within the meaning of Section 15 Copyright Act. If this is done for private purposes it will normally be lawful within the limits of Section 42 Copyright Act.
Care has to be taken in this respect of the exhaustive list of authorized exceptions to the reproduction right that will be imposed by Article 5 of the Directive to harmonise certain copyright and neighbouring law aspects in the information society (COM) 97 628 fin. of 10 December 1997 (Dittrich Internet und On-Demand- Dienste im IPR, ecolex 1997, 166; MR 2/98, 61).
Even the unauthorized reproduction possibility is facilitated through the setting of the link. This makes the link not unlawful. Since putting the information on a web site means that it is in principle intended for publication one could assume in principle that its access is desired and that the "linking" from other page to the referred page is permitted. The author wishes a dissemination of his work. The linking of different pages in the net is a central element of the net known to every provider. That a lot of links increase the possibility of unauthorized reproduction is the normal risk of every content provider in the net.
Moral rights of the author
The author has the right to be recognised as the author of a work and to be identified by name as the author (Section 19 f. Copyright Act). This right is important when the link leads to the showing of a work protected by copyright in a frame in such a way that the user must assume erroneously that it stems from the frame provider. In this case Article 20 Copyright Act is infringed and the author has the right to injunctive remedies (cease and desist claims) and damages. In certain cases the right of the author to prevent distortions and other changes to his work (Section 21 Copyright Act) might be used to prevent the presentation of the work in a frame that supplies a context totally contrary to the main character of the work. (Ernst Rechtliche Fragen bei der Verwendung von Hyperlinks in Internet NJW-CoR 4/97, 224, 225).
Competition law
In general, with the activation of a hyperlink (not an inline link or a frame!) the internet address in the address line of the browser is changed as well. Therefore there is no deception of the user regarding the identity of the provider nor does the "linking" provider pretend the linked contents of another home page are his own by way of a mere hyperlink (Laga, Rechtsprobleme im Internet, 317). Hyperlinks are not more than a reference to content from another source similar to a foot note except in the case of frames or inline links (Laga, op. cit., 313 ff).
Without express statements of the "linking" provider pretending the linked contents of another web page are his own it is only with the use of frames and inline-links that a deception of the user regarding the identity of the provider might be possible. Other hyperlink references remain lawful. Certain home-pages are visited very often precisely because they have a collection of very interesting links. It appears to be permitted in principle to create a site with links to different court decisions or other texts of other providers' web sites. Whoever places a site into the web must expect that links will be set to it. He permits in principle the access to his site. This remains true even when the links are established for commercial purposes (Ernst, op. cit., 226).
Generally it is legal to use the work of a competitor if the work is not protected by the Patent Act, Copyright Act, Trademark Act, model Protection Act, etc. If hyperlinks are used for commercial purposes their use may be unlawful under certain conditions and may lead to claims of damages and injunctive claims on the basis of Section 14 and 16 to 18 of the Austrian Unfair Competition Act. If the link to the competitor is combined with the misleading indication that e.g. the services of the competitor are announced as one's own, it can lead to injunctive claims. As shown below, the most likely legal ground for the provider of the “linked” page to base it’s claim on is Section 1 Unfair Competition Act (exploitation of the competitor’s work).
c) Which effect has an express statement of the competitor prohibiting or restricting hyperlinks to his homepage?
A possible legal ground for the limitation to set links to a home page may be found in the copyright (see above under 2.a) or in the unfair competition law (see below under 2.e).
d) Are hyperlinks supposed to refer to the main homepage?
Through the possibility to set links to offerings from another provider for which the author has not planned a direct access it may happen that the conditions of use, copyright indications, advertisements, etc. presented before the information are circumvented. This contravenes the legitimate interests of the author of the web sites. On the other hand there is also a real interest by users to access directly the desired information without having to go through every single step from the home page to the desired page.
In principle yes, hyperlinks are supposed to refer to the main homepage but the legitimate interests of the users to access the desired page directly - without having to go through every page leading from the home page to the desired page - should be taken into account. This could be done by allowing the link to a specific page at the same time of making the home page accessible from this specific page through the setting of a direct link thereto.
d) Are there legal restrictions as to inline linking (i.e. the use of frame technology in a way that the user has the impression to read a specific homepage without noticing that he has already been linked to another homepage)?
In the case of so-called frames or windows, the link covers only a smaller less important optical part of the viewed page but communicates nevertheless important information. This technique permits authors of web pages to separate these pages in different parts and to provide each part with different specific qualities. This enables the producer to show in each frame various forms of content (e.g. text, graphic, links) and to incorporate complete web pages of other providers into the own web page. Since the frame still shows the name of the referring page the impression is created that the provider has offered this information even though it is someone else. This could only be detected only if the user calls up the function "View Frame Info" (Netscape).
With the use of frames it is therefore possible that the contents of the referred page may not be identified as foreign from the point of view of the user.
Possible legal grounds to restrict inline linking are Section 2 Unfair Competition Act (“Deceptive Statements”) and Section 1 Unfair Competition Act (“Breach of law”; “Exploitation of a competitor’ work”) which will be examined here.
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