AustriaUrhG
Officially Urheberrechtsgesetz (UrhG), Providers of Large Online Platforms (Sections 18c and 89a to 89c)
UrhG, BGBl. Nr. 111/1936, §§ 18c, 89a-89c
In force since .
A notice and action rule binding private bodies.
- Obligation class
- Licensing, Disclosure
As of .
What it requires
- If you are a provider of a large online platform as section 18c defines it, obtain the permission of authors and neighboring-right holders for the works your users upload (sections 18c and 89a(1)).
- To avoid liability for an unauthorized use, show that, in light of proportionality, you made all efforts to obtain permission, made all efforts under high industry standards of professional diligence to keep unavailable the specific works for which rightsholders gave you relevant and necessary information, and acted without delay on a sufficiently substantiated notice from a rightsholder to block access to the work or remove it, and made all efforts to prevent its future upload (section 89a(1)).
- If your service has been available to the public in the Union for less than three years and your annual turnover does not exceed 10 million euro, you need only make all efforts to obtain permission and act without delay on a sufficiently substantiated notice by blocking access to the work or removing it; once your average monthly visitors exceed five million, you must also show that you made all efforts to prevent future upload of the works reported to you (section 89a(3)).
- Do not apply measures that make lawfully uploaded works unavailable, including works whose use is allowed under an exception or limitation, and do not identify individual users except in line with Directive 2002/58/EC and the General Data Protection Regulation (GDPR) (section 89b(1)).
- Make adequate information on how your measures work easy to find on your website and in your terms (section 89b(2)).
- Do not use automated means to block access to, or remove, a small excerpt of a work: where the user combines works of third parties to less than half with own content and the use of these parts does not exceed 15 seconds of a film, 15 seconds of a soundtrack, 160 characters of a text, or a photograph or graphic of 250 kilobytes; the exception is automated measures where the rightsholder shows for a specific period that without temporary measures the economic exploitation of the work would be significantly impaired and other provision is made so that permitted uses are not prevented (section 89b(3)).
- Where a user asserts before or at upload that the use is permitted, in particular for caricature, parody, pastiche or quotation, make the content accessible and inform the rightsholder, unless the assertion is immediately recognizable as abusive, and offer users online forms with instructions for that assertion (section 89b(4)).
- Set up a complaint procedure that lets users take effective and swift action, with reasons, against an unjustified block or removal: complaints can be filed through easy-to-find, always-available functions; complaints are handled without delay; the complaint respondent's statement is obtained without delay and the user is told of it; decisions are subject to human review and the user is told the result without delay; and procedures can as a rule be completed within two weeks (section 89b(5)).
- Where a user substantiates in the complaint procedure that the upload was permitted or that the complaint respondent lacks the claimed rights, ask the respondent for a statement without delay; if the respondent does not respond without delay or responds manifestly insufficiently, make the work accessible (section 89b(6)).
If you get it wrong
Private right of actionYes
Penalty structure
Section 89c(4): a fine of up to one million euro, depending on the gravity of the breach, where the provider applies measures that systematically and to a significant extent make lawful uploads unavailable or sets up no complaint procedure or one that is not effective and swift.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 1,000,000
Who enforces it
Enforcement body
KommAustria (Kommunikationsbehörde Austria) as supervisory authority under section 89c(1), which imposes the fines under section 89c(4); the RTR-GmbH supports it and acts as the complaints body (Beschwerdestelle).
What this law does
Section 18c treats a provider of a large online platform as itself communicating to the public, and so needing the authors' permission, when it gives the public access to copyright-protected works its users upload.
A large online platform is a service that plays an important role on the market for online content by competing with online content services for the same audiences, where one of its main purposes is to store and give the public access to a large amount of works uploaded by its users, and that organizes and promotes this content to make a profit.
Services such as non-profit online encyclopedias, non-profit educational, artistic and scientific repositories, development and sharing platforms for open-source software, electronic communications services, online marketplaces, business-to-business cloud services and cloud services for personal use are not providers in this sense.
Section 89a(1) makes the provider liable, on the basis of fault, to a person injured by an unauthorized making available of a work, unless the provider proves that, in light of proportionality, it made all efforts to obtain permission, all efforts to keep specified works unavailable, and acted without delay on a sufficiently substantiated notice from the rightsholder and made all efforts to prevent re-upload.
Section 89a(3) lowers this to all efforts to obtain permission and prompt action on notice for a provider whose service has been available in the Union for less than three years and whose annual turnover does not exceed 10 million euro, with the added duty to show best efforts to prevent re-upload once its average monthly visitors exceed five million.
Section 89b(1) bars measures under section 89a(1) that make lawfully uploaded works unavailable, including works used under an exception or limitation. Section 89b(2) requires the provider to make adequate information on how the measures work easy to find on its website and in its terms. Section 89b(3) bars automated blocking or removal of a small excerpt of a work.
Section 89b(3) allows automated measures against a small excerpt exceptionally, where the rightsholder shows for a specific period that without temporary measures the economic exploitation of the work would be significantly impaired and other provision is made so that permitted uses are not prevented.
Section 89b(4) requires the provider to make content accessible when the user asserts before or at upload that the use is permitted, unless the assertion is immediately recognizable as abusive, and to offer online forms for that assertion. Section 89b(5) requires a complaint procedure for users against unjustified blocking or removal. Section 89b(5) requires that procedure to be, as a rule, capable of completion within two weeks of the complaint.
Under section 89b(6), where the complaint respondent does not respond promptly or responds manifestly insufficiently in the complaint procedure, the work must be made accessible. Section 89c(1) makes KommAustria the supervisory authority. Section 89c(1) gives the RTR-GmbH the administrative support of KommAustria and the function of complaints body.
Section 89c(4) requires KommAustria to impose a fine of up to one million euro on a provider that applies measures that systematically and to a significant extent make lawful uploads unavailable or that sets up no effective complaint procedure. Providers covered when the amendment took effect had to implement the section 89b duties by , and later entrants within three months of starting activity. The gazette of the Urheberrechts-Novelle 2021 lists Directive (EU) 2019/790 among the Union acts it implements.
When LexLint raises it
When your app profile says your app operates a social platform.