Austria - Appellant: a collecting society v Aufsichtsbehörde für Verwertungsgesellschaften, 6 December 2023
Appellant: a collecting society v Aufsichtsbehörde für Verwertungsgesellschaften, 6 December 2023
| Case | GZ W271 2280327-1/4E |
| Court | Bundesverwaltungsgericht (Federal Administrative Court) |
| Country | Austria |
| Parties | Appellant: a collecting society (name redacted in the published decision) Respondent: Aufsichtsbehörde für Verwertungsgesellschaften (Supervisory Authority for Collecting Societies) |
| Date Case Filed | Not stated in the published (anonymised) decision |
| Type of Claim | Administrative appeal against the rejection of an application to extend a collecting society's operating permit ("Wahrnehmungsgenehmigung") under Section 3 of the Austrian Collecting Societies Act (Verwertungsgesellschaftengesetz 2016, "VerwGesG 2016") to cover the right to affix, in machine-readable form, a reservation against reproduction of works in its repertoire for text and data mining purposes under Section 42h(6) of the Austrian Copyright Act (Urheberrechtsgesetz, "UrhG") |
| Date Judgement issued | 6 December 2023 |
| Summary of Key Background Facts | The appellant is a collecting society registered in the Austrian company register and a wholly owned subsidiary of another collecting society. It holds an existing operating permit that already covers the reproduction right under Section 15 UrhG. The appellant applied to the supervisory authority for collecting societies to extend its operating permit to additionally cover the right to affix, or have affixed, a machine-readable prohibition of reproduction for works in its repertoire under Section 42h UrhG. |
| Remedies sought | The appellant sought an extension of its operating permit to additionally cover the right to affix, or have affixed, a machine-readable reservation prohibiting reproduction of works in its repertoire for text and data mining purposes under Section 42h UrhG. |
| Summary of key legal arguments | Appellant: The appellant argued that Section 42h(6) UrhG, which implements Article 4(3) of Directive (EU) 2019/790 (the "DSM Directive"), created a new free use permitting reproduction for text and data mining purposes that applies only to the extent the rightholder has not expressly and appropriately reserved its rights, including by machine-readable means for works made available online. On this basis, the appellant argued that the reservation (opt-out) under Section 42h(6), second sentence, UrhG is not a mere "counter-exception" to the free use, but a separate exclusivity right within the meaning of Section 2 No. 7 VerwGesG 2016, which can also be exercised collectively through an operating permit. Respondent Authority: The supervisory authority argued that Section 42h(6) UrhG did not create a new exploitation or exclusivity right. In its view, the first sentence of that provision introduced a new free use available to everyone, while the second sentence contained a counter-exception that, once a reservation is made, causes the original reproduction right under Section 15 UrhG to revive; administering such a reservation on behalf of rightholders was, on this view, merely an act of agency that did not require an operating permit. Court's opinions: Whether an operating permit could be granted turned on whether Section 42h(6), second sentence, UrhG contains an exclusive right or a remuneration or participation claim within the meaning of Section 2 No. 7 VerwGesG 2016. Section 42h(6), first sentence, UrhG creates a new "everyone's right" that restricts existing exclusivity rights, while the second sentence grants the rightholder a power to object. This power is not a "new" exclusivity right previously unknown to the UrhG, but merely an emanation of the existing reproduction right under Section 15 UrhG, limited in scope to the possibility of objection. Because the reservation right under Section 42h(6), second sentence, UrhG is only an emanation of the reproduction right under Section 15 UrhG, it is not capable of being the subject of a separate, standalone operating permit. However, since the appellant's existing operating permit already covers the reproduction right under Section 15 UrhG, the appellant may already exercise collective reservations and objections under Section 42h(6) UrhG within the scope of its existing permit, without requiring an additional or separate authorisation. Judgement: The court dismissed the appeal as unfounded, albeit for different reasons than those given by the supervisory authority: the appellant could not be granted an additional operating permit under Section 42h(6) UrhG because the right in question is not a new exclusivity right, but the appellant may already exercise the collective text and data mining reservation within its existing operating permit. The court further declared an appeal to the Administrative Supreme Court (Revision) admissible under Article 133(4) B-VG, given the absence of case law on the underlying legal question. |
| CMS Comment | The Bundesverwaltungsgericht declared an appeal to the Verwaltungsgerichtshof (Austrian Administrative Supreme Court) admissible, noting the absence of prior case law on whether the text and data mining reservation under Section 42h(6) UrhG constitutes an exclusivity right capable of collective management – a question of first impression under Austrian copyright and collecting-society law. |
