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12 translated pages

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992.
Imperial Patent of 19 October 1846.

In order to extend as far as possible the protection of literary
and artistic property against unauthorised publication, reprinting
and reproduction, We have resolved on the introduction of the
following legal stipulations and hereby order that this law be
made known and brought into effect without delay in all those
provinces of Our Empire in which the general civil statute-book
of 1 June 1811, Nr.946 of the Austrian Law Gazette (“Justizgesetz-
sammlung”, JGS), and the penal law of 3 September 1803 on crimes
and serious infractions of the civil order, Nr. 626 of the Austrian
Law Gazette (JGS), have come into force. This law is also to apply
to the Imperial and Royal military border territories and to
those persons who are subject to military jurisdiction, by analogous
application of the military penal laws, regarding which further
instructions will be made known later.

LAW

for the protection of literary and artistic property against
unauthorised publication, reprinting and reproduction.

First section.>

On the rights of authors to their literary and
artistic works.

§.1.
      Literary products and works of art constitute a property of
their originator (author), i.e. of the person who originally
wrote or composed them.
      As long as no specific contracts stand in the way of this,
the following will be treated as equivalent to authors with regard
to the protection given by this law:

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      a) the commissioner of a work who at his own expense has
entrusted someone else with its elaboration and execution
according to a given plan;
      b) the publisher or entrepreneur of a work which is made
up of independent contributions from various contributors;
      c) the publisher of an anonymous or pseudonymous work (§.14, a, b).

§.2.
      The author of a literary or artistic work is, according to
the stipulations laid down in the present law, entitled to the
exclusive right of disposing of his work as he wishes, of
reproducing and publishing it in any form he may please.
      He can also transfer this right to others wholly or partly.

§.3.
      Any mechanical reproduction of a literary work which has
been published in observance of legal requirements and formalities,
that is undertaken without the permission of the author or his
legal successor, is deemed to be an illegal reprint, irrespective
of whether it was made by the same or a different method as that
used in the production of the original work.
      This prohibition of mechanical reproductions also applies
to works of art.
      Apart from the original work of scholarship or art, every
print copy and every reproduction of it carried out by the author
or his legal successor in accordance with the author’s right to
which he is entitled (§.1), is also to be treated as the original work.
      Exceptions to the above stipulations of this paragraph are
contained in subsequent paragraphs below (§§.5-9).

§.4.
      The following are regarded as equivalent to illegal reprinting:
      a) the impression of manuscripts of any kind undertaken without
            permission of the author or his legal successor; as is
            the impression
      b) of lectures given for the purpose of edification, instruction,
            or entertainment. In both cases (a and b), even if the person
            undertaking the impression is the rightful owner of the
            original manuscript, or of a copy or transcript of the
            latter, he must still be able to prove that he has obtained
            permission for his undertaking.
            Moreover, what was said above (a) regarding manuscripts also
            applies to geographical and topographical maps, to scientific,
            architectural, and similar drawings, to pictures etc., which
            as far as their purpose is concerned cannot be regarded as
            independent works of art, but, rather, are intended for the
            illustration of scientific subject-matter.
      c) extracts from the work of another author, with or without
            alterations, if they are published as separate works
            with or without the title of the original work;
      d) alterations made to the supplementary parts of a work, namely,
            the addition, omission, or modification of notes,
            illustrations,

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            maps, indexes etc., do not cause the reprint of a work
            or of an extract from it to evade this prohibition on
            reprinting;
      e) of two given works, bearing identical or different titles,
            which deal with the same subject-matter in the same
            order and arrangement, the most recently published one is
            to be treated as an illegal reprint unless the expansion
            or any other alteration of the content which may be
perceived in it is recognised to be so substantial and paramount
            that it has to be regarded as a new independent work of
            the intellect.

§.5.
      On the other hand, the following do not count as reprinting
and are thus allowed:
      a) verbatim citation of individual passages from already
            published works;
      b) the incorporation of individual essays, poems etc.,
            borrowed from a larger work, a journal, or any other
            periodical publication, into an essentially new and
            independent work (especially one of literary criticism
            or literary history); or into a selection of extracts
            from the works of various writers which has been drawn
            up for a specific literary purpose or to be used in
            church, in school, or for a teaching purpose in general;
            or, finally, into periodical journals and newspapers.
            However, the original source must be indicated explicitly,
            and the borrowed essay may neither exceed one printed-
            sheet of the work from which it has been drawn, nor may
            it be distributed as an independent pamphlet. In journals
            and other periodical publications, moreover, the total
            length of such borrowed articles may not exceed two
            printed-sheets in any one year’s set. Those newspapers
            which deal mainly just with politics are merely obliged
            to state the source from which an article has been
            borrowed;
      c) the translation of a published literary work, irrespective,
            moreover, of its language, except where the holder of
            author’s rights (§.1) has explicitly - on the title-page or
            in the foreword of the original work - reserved for
            himself the right to arrange for its translation in
            general or into a specific language. In such a case any
            translation brought out within a year of the original
            work’s publication, without the consent of the author
            or his legal successors, is to be treated as an illegal
            reprint. If the author has arranged for his work to be
            published simultaneously in various languages, each one
            of these editions is treated as an original work. Every
            translation published in conformance with the law is to
            be protected against reprinting, and where there are
            several translations the more recently published one is
            to be treated as a reprint if it does not differ from
            the earlier one at all or only by some insignificant
            modifications;
      d) giving a later work a title identical to that of another
            author’s work which had been published earlier. However,
            where the choice of the same title is not absolutely
            necessary or appropriate for describing the subject-
            matter treated and where, moreover, it can easily cause
            the public to be misled about the identity of the work,
            the party injured thereby may be entitled to claim
            compensation.

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            If this has occurred without any unlawful intention, the civil
            judge will decide whether such a claim is justified.

§.6.
      Where musical compositions are concerned, an impression of a score
undertaken without the authorisation of the composer or his legal
successor is also to be treated as equivalent to illegal reprinting.
      The following, on the other hand, are not to be treated as illegal
reprints or re-engravings, and are thus allowed:
      a) the incorporation of individual themes from musical compositions
            into periodical works;
      b) the use of a musical composition for variations, fantasias,
            études, pot-pourris, and suchlike, which can be considered as
            independent creations of the intellect;
      c) the arrangement or adaptation of a musical composition for
            different or less instruments than those for which it had
            originally been written.If, however, the composer has
            explicitly- on the title-page of his published work- reserved
            for himself the exclusive right to publish an arrangement
            of it in general or for specifically indicated instruments,
            any arrangement published before expiry of one year from the
            date of publication of the original composition, without the
            consent of the composer or his legal successors, is to be
            treated as an illegal reprint;
      d) if for a later musical or dramatic work the same title is
            used as for a work of the same genre which had been published
            earlier, the stipulation in §.5.d. is to be applied.

§.7.
      The vocal text which belongs to a given musical work is considered
to be a supplement of the composition and can therefore be published
by the composer together with the musical score, except where specified
otherwise by a contract.
      In order to publish the text without the music, the consent of
the poet or librettist must be obtained. Where, however, the composition
is intended for public performance, this consent may be presupposed in
the sense that the person who has acquired the right of performance is
also entitled to have the text printed for its use in the performance
of the musical work, provided that this purpose is indicated.

§.8.
      Amongst the exclusive rights of the author of a musical or dramatic
work (§.2) is also that of its public performance (production), which
is therefore forbidden before expiry of the legal term of protection
(§§.23 and 24), both in its entirety and in abbreviated or insubstantially
modified form, without permission of the author or his legal successors,
so far as the work hasn’t been published by printing or engraving.
      If the author distributes various printed copies of his work as
privately printed copies [e.g. as scripts for rehearsals] and this is
clearly evident from the copies, this is not to be treated as a publication
[allowing the work’s performance by others].

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      If permission for performance of a work has been obtained from the
author, this also entitles one to repeat the performance as many times
as one likes, unless the author had reserved the right to restrict the
number of performances.
      Where a dramatic work has several joint authors, in case of doubt
each one is considered to be entitled to grant permission for its
performance.

§.9.
      In the case of drawings, paintings, copper, steel and stone engravings,
woodcuts, and other works of graphic art, as well as works of plastic art,
the following are not to be treated as illegal reproductions:
      a) if the reproduction, whatever kind it may be, differs from the
            original not just in the material used, in the form or size, but
            also in such essential alterations in the manner of representation,
            by virtue of which it can be regarded as an independent work of
            art;
      b) if a work of art has been used as a design for products of manufacture
            (in factories or by handicraft) that serve a genuine, material
            purpose;
      c) if a work of graphic art published in the press is represented in
            plastic form, or
      d) if a work of plastic art which is intended not just for contemplation
            but serves a specific material purpose or serves only as the
            decoration of a manufactured product, is copied by means of
graphic art, with or without colours.

§.10.
      However, for the author of a completed work of art or his legal
successor to be able to exert his exclusive right of copying and
reproduction of the work in those cases where the conditions of the
preceding paragraph do not prevent this, he must, when making the work
known to the public, explicitly reserve for himself the right to its
reproduction and carry it out within two years of the work’s appearance,
in default of which any reproduction of the work of art is fully
permitted.

§.11.
      Although, when ceding the right to reproduce a work of graphic or
plastic art, the author or his legal successor does not lose his
ownership of the original, if the original work of art does become someone
else’s property, then, unless the contrary was agreed beforehand, the
exclusive right to arrange for, or allow, the work to be reproduced,
also passes to the purchaser.

§.12.
      The sale of products resulting from a reprinting which by virtue of
the present law is illegal, whether executed here or abroad, and from
any other reproduction considered equivalent to this, is also declared
to be illegal, irrespective of whether it is undertaken by booksellers,
art dealers, music-shops, printers, publishers or anyone else who carries
on such business.

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Second section.

On the legal terms of protection for literary and artistic property.

§.13.
      The exclusive right of publication, copying, and reproduction of
a literary or artistic work (the publishing right) with which the
present law vests its author, generally subsists not just during his
whole lifetime, but also belongs, for a period of thirty years after
his death, to the person to whom he has ceded his right, or, if he
had not disposed of it otherwise, to his heirs and their legal
successors. The year of the author’s death is not counted. State
escheat or reversion to other persons does not apply.

§.14.
      Equal protection for a period of thirty years, to be calculated
from the end of the year in which the work first appeared, is granted to:
      a) those works on whose title-page or under whose dedication or
            at the end of the foreword the name of the author is not
            indicated (anonymous works);
      b) those works which appear under a different name to the author’s
            real one (pseudonymous works); however, here, as in the
            preceding point, it is presupposed that the publisher,
            entrepreneur, or commissioner (§.1), who would come into
            the author’s full right, is not named on the title-page,
            under the dedication, or at the end of the foreword;
            Moreover, the publisher of a work is by proxy entitled to
            secure protection for the rights of the anonymous or
            pseudonymous author.
      c) a work which has been written by several named authors,
            unless a publisher is indicated in the manner specified in
            the preceding points of this paragraph;
      d) those works which come to be published only after the author’s
            death (posthumous works), and, finally, also to
      e) the continuation of an edition of a work begun by the author
            himself, undertaken by his heirs or other legal
            successors.

§.15.
      In the case of works published by academies, universities and
other scientific or artistic institutions and societies enjoying the
special protection of the State, the legal term of protection against
reprinting and reproduction subsists for a longer period of 50 years.
      In the case of works by other societies and organisations, the
legal term of protection specified in the preceding paragraph applies.
      If the author of a contribution to such a work arranges an
independent expanded or corrected edition of his contribution, his
author’s right will be protected for the legal term specified in §.13.

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§.16.
      For works made up of several volumes or those which appear in parts
or in any other kind of instalments, as long as the various parts taken
together can be seen as one whole, the legal term of protection specified
in paragraphs 13-15 applies to the whole work and is counted starting
from the date of publication of the last volume or instalment. It is only
when a time period of at least three years has passed between the
publication of the separate parts that the volumes, numbers etc. published
earlier are treated as an independent work in their own right and,
similarly, the later volumes which come out after expiry of these three
years are also treated as a new work.
      In the case of running compilations of works, treatises etc. on
various subjects each individual work, irrespective of whether it is made
up of one or several volumes, numbers etc., is regarded as a whole work
in its own right.

§.17.
      In cases which merit special consideration the government can, for
the benefit, say, of the authors, editors, or publishers, of important
works of scholarship and art which require a significant outlay, extend by
means of a privilege the legal terms of protection granted in the present
law to the author, his heirs, or other legal successors, by a specific
number of years beyond the legal period.
      This privilege must, however, be obtained before the publication of
the work is complete and its duration must be indicated on the title-page,
or, where this cannot be so because of the nature of the object, it must
be made known in the public newspapers of the Imperial and Royal province
in which the work is to appear.

§.18.
      Official documents originating directly from the government are,
after their publication, protected by a prohibition on any reprinting
until (and if) the government decides to suspend this.
      A similar continuous protection beyond the legal period is also to
apply to those works from which it is evident that they were published
by order of the government and on the proviso of such continuous
protection.

§.19.
      After expiry of the legally fixed or extended terms of protection,
or earlier still if no heir or other legal successor of the author
happened to be alive any more, works of literature and art may be
reprinted and reproduced in any form whatsoever. However, before this
time any announcement or notice to this effect is forbidden.

§.20.
      The second edition (§.1168, a.,b., of the statute-book) of a work
enjoys the same legal protection against reprinting as the first,
without detriment, though, to the right to reprint the first if since
it was published the legal term has expired.

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      The same also applies to all subsequent editions in relation to
the preceding ones.

§.21.
      The censorship permit obtained for the impression or any other
reproduction of a work cannot serve as an excuse if it turns out that
the latter involved an illegal reprint or an illegal reproduction.

§.22.
      The exclusive right to performance of a musical or dramatic work
(§.8) subsists not just for the author’s whole lifetime, but also
extends to the person to whom the latter has ceded it, or, where the
author had not disposed otherwise, to his heirs and their legal
successors for a further ten years after the year of his death.

§.23.
      The same protection for a period of ten years, albeit starting
from the day of the first public performance, applies to:
      a) a work which has several named authors;
      b) anonymous and pseudonymous works, irrespective of whether or
            not the author or composer’s true name is made known after
            the performance, even if it is the only such performance
            of the work;
      c) posthumous works, i.e. such works which are performed for
            the first time only after the author’s death by his heirs
            or other legal successors.

§.24.
      The admonition given in paragraph 21 also applies to the
censorship permit obtained for the performance of a musical or
dramatic work.


Third section.

Stipulations on the punishment to be imposed and the
right of compensation.

§.25.
      Unauthorised reprinting and any reproduction or replication
regarded as equivalent to it is an offence which makes the person
who has carried it out or knowingly taken part in its realisation
liable not just to confiscation of the copies, reprints, casts etc.
that are found, to dismantling of the typesetting and, in the case
of works of fine art, the destruction of the plates, stones, models
and other objects which served for the execution of this reproduction
alone (except where the injured party has agreed to take over these,
as indicated in paragraphs 29 and 30), but also to punishment by a
fine ranging from 25 to 1000 gulden, which, in the case of insolvency
being declared, is to be converted into a proportionate sentence of
detention (§.26), and if the offender has antecedent convictions for
this offence (at least twice) he may also be punished, depending on
the circumstances, with loss of his profession.

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§.26.
      As regards the proportion of the fine imposed to the sentence of
imprisonment, the following scale is to be applied: a fine of 25 to
100 gulden is equivalent to a sentence of imprisonment of one week to
one month; a fine of over 100 to 400 gulden is equivalent to a sentence
of one to three months; and a fine of over 400 to 1000 gulden is
equivalent to a sentence of three to six months.

§.27.
      The author injured by the illegal reproduction of his work, as
well as his heirs and other legal successors are, moreover, entitled
to compensation corresponding to the value of all the copies resulting
from the unauthorised reproduction, calculated on the basis of the
sales price of the original, but this does not, however, exclude the
assertion of further claims for compensation.
      If the total number of copies resulting from the unauthorised
reproduction cannot be ascertained, it is to be set, depending on
the circumstances and taking into account the report of experts
appointed by the authorities, at a figure from 25 to 1000.
      The same procedure for determining the damages to be compensated
is in general also to be applied where the rightful original edition
of the work had not been carried out yet (§.4, a & b) and where it
was not possible to come to the amicable settlement envisaged in the
second part of paragraph 29.

§.28.
      The publisher of a work is entitled to compensation according
to the stipulations of the preceding paragraph only to the extent
that the number of the copies produced by and resulting from the
illegal reproduction does not exceed that of the copies of the
original work which he had in stock and were ready for sale.
      Any compensation ensuing from the number of illicit copies in
excess of the number of copies held in stock by the rightful
publisher, accrues to the author and his legal successors.
      In any case the publisher has to hand over to the author free
of charge the number of original copies for which he has himself
received compensation, or come to an agreement with him on this in
another way. However, it is the publishing contract which determines
the mutual rights and obligations of author and publisher.

§.29.
      The confiscated copies and other objects (§.25) are- unless
the injured party has agreed to take possession of them whereby
their value is deducted from the compensation due to him and he
must reimburse the reprinter for the provable expenses spent on
their material production- to be destroyed as soon as the sentence
has been passed and enters into legal force. Where the reprinting of
a manuscript or a transcript (§.4, a & b) has been carried out before
publication of the rightful original edition, the injured party is
entitled to come to an understanding with the reprinter about
royalties from sales of the pirate edition. This, then, serves as
the basis for a publishing contract which revokes the confiscation
of the pirate copies but not, though, the continuation of the pending
investigation and the legal punishment.

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§.30.
      Whoever knowingly carries on trade with products made by reprinting or by
a means of reproduction considered equivalent to this (§.12) is liable, apart
from confiscation of the copies used, to a fine ranging from 25 to 1000 gulden,
to be converted to a proportionate sentence of imprisonment in case of
insolvency (§.26), and, in cases of repeated re-offending, may even be punished,
depending on the circumstances, with the loss of his profession. Together with
the person who undertook the illegal reproduction, he is also obliged to pay
full compensation (i.e. whereby the total amount of damages is not divided
between the two). The confiscated copies are to be destroyed, unless the
injured party agrees to take possession of them with deduction of their value
from his claim for compensation.

§.31.
      A public performance of a dramatic or musical work, in its entirety or
with abridgements or insignificant alterations, that is organised contrary to
the exclusive right of the author or his legal successors, is, apart from
confiscation of the unlawfully used manuscripts (librettos, scores, stage
parts etc.), to be punished with a fine ranging from 10 to 200 florins or,
where inability to meet this payment is declared, with a proportionate
sentence of imprisonment.

§.32.
      The author injured by the unauthorised performance, as well as his
legal successors, are entitled to full compensation, for the purpose of
which he is to receive the whole sum of the takings from each performance
(either that sum which is confiscated in flagrante or that which is
determined subsequently during the investigation), without deduction of the
expenses spent on the performance, and irrespective of whether the work was
performed on its own or in combination with another work, whereby his right
is reserved to assert even higher claims for compensation as the case may be.


Fourth section.

On the official commission of inquiry and the proceedings.

§.33.
      Violations of the present law for the protection of literary and artistic
[intellectual] property are to be investigated and punished by the authorities
as serious offences against the civil order, and with regard to the
proceedings, the limitation period, and any other stipulations relevant to the
investigation, conviction, punishment, and compensation to be imposed, the
directives of Part II of the penal law of 3 September 1803 are to be applied
unless specified otherwise in the present law.
      If a report by experts is required these are to be chosen from amongst
writers, scholars and booksellers where literary works are concerned; and
from amongst artists, art connoisseurs, and art or music-shop owners, where
works of art are concerned.

§.34.
      The commission of inquiry is not to intervene ex officio but only upon
request of the injured author or his legal successors.

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The withdrawal of an action after the investigation has already been
initiated has a legal effect only on the compensation rights of the
plaintiff but not on the investigation itself and any thereof
resulting legal punishment.

§.35
      The confiscation of the appropriate objects is to be arranged for
immediately upon request of the plaintiff if the capacity [legal
status] of the author (commissioner, entrepreneur, or publisher) of a
work in the sense of §.1 and, if necessary, the publication date of
the original work have been demonstrated.
      For this demonstration any legally valid evidence is acceptable.
In the case of literary works, in particular, the official certificate
issued by the Imperial and Royal Book Inspection Office of the province
in which the work was published, and, in the case of works of art, an
authentic notice of a completed art work published by the newspapers
of the province, or the authentically drafted corroboration by an art
institute which is under supervision of the State, are to be taken as
valid proof.
      If the customary press notice advertising a performance is to be
used as evidence of the first performance of a dramatic or musical
work, it must be accompanied by an official certificate from the local
political or police authorities corroborating that the performance
actually took place.


Fifth section.

On the coming into force and scope of this law.

§.36.
      The present law comes into force from the day of its promulgation
and applies to all works appearing in conformance with the specified
stipulations, irrespective of the author’s nationality. All earlier
regulations which may run contrary to this law or deviate from it
are abrogated by its coming into force.

§.37.
      This law is also to be applied for the benefit of all already
existing and lawfully published original works to the extent that
for ten years from the day of its promulgation it will protect the
literary and artistic property rights to these works insofar these
were not already covered for a longer period by the earlier regulations.
      Only a reprint which had already been commenced in a lawful
manner or advertised in advance for subscription before the promulgation
of this law, or a reproduction regarded as equivalent to this, will
not be subject to the stipulations of this law.

§.38.
      The protection against reprinting and any other unauthorised
reproduction by mechanical means accorded by the present law is also

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granted to all literary and artistic works which appear within the
territory of the German Confederation. However, in order to invoke
this protection, it must be proved that the legally established
stipulations and formalities of the confederate state in which the
original work appeared were fulfilled.

§.39.
      The protection enunciated in the present law is accorded to
works appearing abroad, outside the territory of the German
Confederation, in the same measure as the laws of a given foreign
state likewise guarantee these rights for works that appear in
Imperial and Royal Austrian territory.



Translation by: Luis Sundkvist