Art Legality In Austria: What's The Verdict?

Art in Austria is a significant contributor to the country's economy, generating an estimated US$2 billion in revenue per year and accounting for 2% of the EU's art market. The country has a rich musical tradition and is home to world-renowned opera houses and concert halls. Austria's art sector is also a major draw for tourists. The country has strict cultural protection laws and export restrictions in place to prevent the trafficking of looted artefacts and ensure the return of objects taken under colonial rule or suspect circumstances. Austrian copyright law protects the intellectual property rights of artists, and the country has seen an increase in demand for art loans and finance. Additionally, Austria has specific visa and work permit requirements for artists entering the country, whether from EU or non-EU countries.

Art sales and auctions

The auction house market in Austria is dominated by large international players, as well as local auction houses such as Dorotheum, the largest auction house in continental Europe. Smaller auction houses and trade shows also contribute to the sale of fine arts.

Austria Auction Company, founded in 2013, is an example of a smaller auction house. It specialises in antique rugs and kilims, sourced from private European collections. The company has a base of loyal customers, with positive reviews citing great communication, accurate descriptions, and fast international shipping.

Austria's Federal Copyright Law protects the intellectual property rights of artists and creators. Copyright protection extends to paintings, drawings, works of architecture, applied arts, and photography. Adaptations of original works are also protected, provided they are original.

Copyright law

Austria's Federal Law on Copyright in Works of Literature and Arts and on Related Rights (the Copyright Act) provides for the protection of the intellectual property of the author and defines the terms 'author' and 'co-author', the requirements of a protected work, and the author's moral rights. The law also prescribes the exclusive exploitation rights of an author and the exemptions from it.

The Federal Law on Collecting Societies 2016 provides for the operational requirements of a collecting society, as well as their rights and duties towards copyright owners and users.

Enforcement Authorities

The civil law provisions of the Copyright Act regarding infringement of exploitation rights and moral rights are enforced by the author of a work or the exclusive licensee, who is entitled to legal enforcement according to the licence agreement, through remedies before the ordinary civil courts.

Criminal law provisions are enforced by a public prosecutor upon a prosecution request from the injured rights holder.

Protectable Works

The Copyright Act protects original intellectual productions in the fields of literature, music, art, and cinematography.

Works of literature include works of language of any kind, including computer programs; theatrical works expressed by gestures or other movements of the body (works of choreography and pantomime); as well as works of a scientific or didactic nature that consist of two-dimensional or three-dimensional pictorial representations, unless they constitute works of art.

Works of art include works of photography (photographic works), architecture, and applied art (commercial art).

Cinematographic works (films) are motion pictures in which the events and actions are presented either by images only or with sounds.

Rights Covered

The Copyright Act covers exploitation rights and moral rights. Exploitation rights grant the author the exclusive right to exploit their work in the manner reserved for them in the relevant sections of the Copyright Act. This definitive catalogue comprises the following rights:

• The right to adapt and translate the work.
• The right to communicate to the public the contents of a work of literature or cinematography for the first time.
• The right of reproduction.
• The right of distribution.
• The right of rental and lending.
• The right of broadcasting.
• The right of recitation, performance, and presentation.
• The right to make a work available.

The exploitation rights ensure that the author can decide if and to what extent their work shall be exploited. In general, the use of a work is not admissible without the author's consent, except for limitations of copyright that are determined by law.

Excluded Works

The Copyright Act only protects works that are peculiar and intellectual creations. According to court practice, the creation of a human mind is deemed peculiar and intellectual if the work is the result of creative mental activity and has obtained its peculiarity from the personality of the creator. Hence, the creation must stand out from ordinary and popular works.

Thoughts as such (e.g. ideas) are not protected under Austrian law. Only the specific form of the content is subject to protection. Hence, ideas must be brought into a tangible form of expression to be protected by copyright.

Further, laws, orders, official decrees, public notices and decisions, or official works produced exclusively or mainly for official use, shall not enjoy copyright protection.

Fair Use and Fair Dealing

The Copyright Act does not include a fair use doctrine. Austrian law expressly determines the rights of the users to freely (i.e. without the consent of the author) use a work and hence, prefers specific statutory exemptions from copyright infringement to the general concession that any use of a work could be fair depending on certain factors (e.g. purpose of use, effect of the use).

Architectural Works

According to the Copyright Act, 'works of art' also include works of architecture. In order to be protectable, the elected work must not only be functional but also an artistic interpretation. Solely technical solutions are not protectable. Hence, whether an architectural work can be granted protection will depend on whether the form elements rely only on technical aspects or whether they have also been included simply for reasons of taste, beauty, and aesthetics, and hence, the artist has decided on the elements by use of creative exploitation of a certain margin.

Performance Rights

Performance rights in the sense of the rights granted to performers (e.g. musicians, actors, or dancers) and to promoters are protected by the Copyright Act as 'neighbouring (or related) rights'.

Performers are granted moral and exploitation rights. Hence, a performer shall have the exclusive right to fix their recitation or performance, including broadcasting thereof, on a video or audio recording medium, and to reproduce or distribute such a recording. At the request of the performer, their name (or pseudonym) shall be shown on the video or audio media. This may not be done without their consent.

Neighbouring Rights

The Copyright Act acknowledges the protection of photographs (i.e. images produced by a photographic process, in contrast to photographic works) in the chapter about neighbouring rights. The photographer shall have the exclusive right to reproduce, distribute, publicly present by means of optical devices, and broadcast such photographs.

In the case of photographs produced commercially, the owner of the enterprise shall be deemed the producer. Where the producer has marked their name (including their pseudonym or trade name) on a photograph, copies thereof made by other persons and intended for distribution shall also bear the corresponding reference to the photographer.

Moral Rights

The Copyright Act recognises moral rights of authors in the following ways:

• Protection of authorship: Where the authorship of a work is contested or the work is attributed to a person other than its creator, the latter shall be entitled to claim authorship. This right would be infringed if a third party wrongly attributes a work to themselves. Waiver of this right shall be without effect.

Art loans

Austrian law allows for the application of material immunity for loaned artworks imported into the country under certain conditions. The Federal Law on the Temporary Material Immunity of Loans of Cultural Property for the Purpose of Public Exhibition states that immunity from legal claims can be requested by ministerial decision before foreign cultural property is imported into Austria. This promise of immunity is irreversible and only applies if the artwork will be exhibited in a federal museum. Most of Austria's nine states have enacted similar legislation regarding their state museums.

Auction houses play a crucial role in the distribution of artworks. They often act as sales commission agents, auctioning off artworks owned by the seller. The auction house has specific duties, including ensuring that the artwork is free of defects and authentic. They are also responsible for checking databases of stolen or looted artworks to prevent the illegal sale of such pieces. The auction house can reduce the opening bid if there are no bids, but the seller has the right to reject the transaction. If the artwork remains unsold, it can be placed in the after-sale, and the auction house is entitled to sell it at the starting bid.

In the case of a reverse transaction due to issues of authenticity or other defects, the seller must repay the proceeds, and the auction house returns its commission. However, general terms and conditions may exclude rescission of the transaction due to warranty. In such cases, exceptions apply to consumer transactions, and the auction house has fiduciary duties towards the seller.

Artist visas

Artists from third countries who wish to perform or work in Austria will need to obtain a visa. The type of visa required will depend on the length of stay and the nature of the work.

Visa Options:

• Schengen Visa Category C: This is a short-term visa that allows the holder to stay in Austria for a maximum of 90 days within a 180-day period. It can be issued for tourism, business, or short-term work purposes. If the artist intends to work during their stay, the visa must include the addition of "EMPLOYMENT".
• Visa D: A long-stay visa issued by an Austrian representation, entitling the holder to stay in Austria for up to 6 months. This visa also allows the holder to move freely within other Schengen states for up to 90 days without engaging in gainful activity.
• Employment Visa: Artists intending to work in Austria, regardless of the duration of their stay, will need to obtain either a Visa C Employment or a Visa D Employment. They will need to provide proof of artistic activity and sufficient means of subsistence.
• Exemption from Work Permit: Under Section 3 Paragraph 4 of the Act on the Employment of Foreign Nationals, foreign artists can be employed for one day or up to four weeks without an employment permit. This exemption applies to concert or stage performers, acrobatic artists, film, radio, and TV artists, or musicians who are part of an overall artistic production. In such cases, the organiser or producer must notify the local Public Employment Service (PES) or the responsible local employment office (AMS).
• Residence Permit: Artists intending to stay in Austria for more than 6 months must obtain a residence permit from the local Immigration Service Centre. This permit includes a work permit, and the application process involves verifying the conditions of employment, including remuneration, which must be equal to or higher than that of domestic artists in the same sector.

It is important to note that visa requirements may vary depending on the specific circumstances of each artist, and it is recommended to consult with the Austrian Embassy or relevant authorities for the most accurate and up-to-date information.

Restitution laws

Austria has been tightening its cultural protection legislation to prevent the trafficking of looted artefacts and to improve the process of returning objects taken under suspicious circumstances to their rightful owners.

In 1998, the Austrian government established the Commission for Provenance Research to systematically inventory state collections and identify looted objects. The Federal Art Restitution Act was also passed in 1998, allowing for the return of confiscated works of art and cultural objects still in the possession of the state to their original owners or their heirs. This law was amended in 2009, and again on 25 January 2011.

In 2023, the Austrian government announced plans to propose a new law requiring museums to return objects acquired in a colonial context by March 2024. The culture secretary, Andrea Mayer, stated that the proposed law aims to establish a comprehensive protocol for restitution claims, acknowledging the historical injustice of European colonial powers taking artefacts from other parts of the world as their "natural right".

In the post-World War II period, Austria passed several restitution laws to address the return of seized assets, including artwork, to their rightful owners. Between 1946 and 1949, the Republic of Austria passed seven restitution acts, with the First and Second Restitution Acts specifically addressing the restitution of seized artworks held by the public administration or in public ownership. The Third Restitution Act pertained to art objects held in private ownership.

In 1955, the State Treaty of Vienna further regulated the restitution of assets expropriated during the National Socialist (NS) regime, obligating Austria to return stated property and transfer heirless or unclaimed assets to government departments or victim organisations. The Receiving Organisations Act of 1957 established Collection Points A and B to facilitate the restitution process, with Collection Point A focusing on the restitution of property belonging to members of the Jewish denomination and Collection Point B handling applications from politically persecuted persons, including Jewish persons who did not belong to the Jewish Community.

In 1969, the First Artistic and Cultural Assets Settlement Act was passed, providing former owners with the opportunity to reclaim works of art in the custody of the Federal Office for the Protection of Monuments whose owners could not be identified. This was followed by the Second Artistic and Cultural Assets Settlement Act in 1985, which led to the restitution of additional artworks and the transfer of unclaimed works to the Jewish Community.

Frequently asked questions