Category: Austria

YES – In its previous case law, the court has recognised the importance of hyperlinks for the operation of the World Wide Web and for freedom of speech. On these grounds, the European Court of Justice (ECJ) generously allowed the use of links to make third-party content accessible via one’s own website.

However, the ECJ has now (ECJ 9 March 2021, C-392/19 VG Bild-Kunst) clarified that copyright holders can protect their works from being shared online via the use of links and frames and offered guidance on how to do so.

What’s known so far: Linking is widely allowed

An act of “communication to the public” (e.g. the publication of content online) requires the consent of the copyright holder. The same is true for acts of reproduction. Thus, it was and is illegal to provide copyrighted third-party content on one’s own online medium in isolation from the original source without the copyright holder’s authorisation.

However, a significant restriction applies when third-party content is embedded in a webpage by means of hyperlinks and frames (in the latter case, the third-party content is displayed in a frame and the source can be accessed by clicking on the frame). First of all, such links do not require a reproduction of the work, since the link leads to the initial source. Furthermore, the ECJ stated in two landmark decisions, that the provision of clickable links on a website to works freely available on another website does neither constitute an act of communication to the public (ECJ 13 February 2014, C-466/12 Svensson), even if the copyright holder has not granted permission for the publication on the linked website (ECJ 21 October 2014, C-348/13 BestWater).

The ECJ reasoned that the notion of “communication to the public” does not apply when

• works are shared by the same technical means as in the initial communication, and
• are not directed at a new public.

In case of hyperlinks to content freely accessible on a third-party website, the ECJ held that the same technical means are used and the “same public” (as the one that was taken into account by the copyright holder when they authorised the initial communication to the public) is addressed.

Only where it is established that a person knew or ought to have known that the hyperlink they posted provides access to a work illegally placed on the internet, may a link constitute an unlawful interference – such knowledge is assumed if the linking person acts in commerce (ECJ 8 September 2016, C-160/15 GS Media). The same applies if a link allows users of the website on which it is posted to circumvent the restrictions taken by the site to restrict the public’s access to its own subscribers. Thus, if for example a link circumvents a paywall, the work is directed at a new public (namely a public that has not payed for the content).

What has now been clarified: Copyright holders must take effective (technological) measures to protect their lawfully uploaded and freely available works against linking/framing

In its recent decision (ECJ 9 March 2021, C-392/19 VG Bild-Kunst), the ECJ again dealt with the permissibility of frames. It examined whether the embedding of third-party content from a website on which this content is freely accessible (with the consent of the rightsholder) is permissible where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing.

The ECJ ruled that under these circumstances (i.e. when such [technological] measures were adopted or at least imposed by the copyright holder), the embedding of third-party content constitutes an act of communication to the public, which requires the rightsholder’s consent. If the copyright holder’s intention expressed “in the language of the internet” (see BGH/German Federal Court of Justice 25 April 2019, I ZR 113/18, para. 35) to restrict their consent to a communication to the public to a specific group of users was ignored/rendered irrelevant, this would amount to an exhaustion of the right to communicate protected works on the internet (that is not provided for in the relevant legal provisions).

Yet, in order to ensure legal certainty (and the proper functioning of the internet), the restriction to communicate must be managed by effective technological measures,.

What remains unclear: Technical details

While the ECJ has clarified certain aspects of its previous case law, not all questions concerning the linking of copyright-protected works have been answered.

The ECJ left open which precautions qualify as “effective technological measures”. Would, for instance, commands frequently found in robots.txt files, which website operators use to express their wish to restrict the use of their content, suffice?

Nevertheless, the ECJ appears to have clarified another technical detail (by omission): While Advocate General Szpunar in his Opinion proposed differentiated legal consequences depending on the type and functionality of the links (in particular simple links on the one hand and “deep links” on the other), the ECJ seems to prefer a uniform approach to all sorts of links.

In a nutshell / Practical to do’s

• Copyrighted content that was legally published online and that is freely available may be shared via links (whether hyperlinks or frames) without the consent of the rightsholder (caution: such links may nevertheless be problematic under unfair competition law, if – for example – a misleading impression is created).
• Rightsholders who wish to restrict access to their works to users of one or more specific websites must implement or impose effective technological measures against linking/framing.
• If such effective technical measures are ignored/circumvented the link is considered a communication that requires the consent of the right holder.
• If copyrighted works were placed on the internet illegally, links to such works are “illegal” if the linking person knew or ought to have known that the link provides access to a work illegally placed on the internet – such knowledge is assumed if the linking person acts in commerce.

By Anna Katharina Tipotsch, Associate, and Dominik Hofmarcher, Counsel, Schoenherr

DLA Piper has advised Cooperative Rabobank U.A., Landesbank Baden-Wurttemberg, and Norddeutsche Landesbank Girozentrale on their financing for two Highfield Solar Limited solar projects in Ireland with a total capacity of 282 megawatts.

According to DLA Piper, Highfield Solar Limited is a joint venture between Ib Vogt GmbH, Highfield Energy, and Aura Power. In addition, according to the firm, “the projects secured capacity under the recent Renewable Energy Support Scheme 1 auctions in Ireland, and are a substantial addition to Highfield Solar Limited’s existing and under-development Irish asset portfolio.”

DLA Piper’s team included Austria-based Partner Andreas Gunst and Senior Associate Kenneth Wallace-Mueller; UK-based Of Counsel Felix Ndi-Obiosa, Senior Associates Robert Cockburn, Jeremy MacIve, and Jacques Camilleri, Legal Director Marcus Lovatt, and Associates Adiya Gokarn, Natalie Webb, Emma Whitfield, Dolapo Oshin, and Sophie Linnell; Ireland-based Partners Conor Houlihan, Graham Quinn, and Kate Curneen, Legal Director Eileen Johnston, and Legal Executive Bernie Gallagher; and Germany-based Counsel Robert Hofbauer and Senior Associate Gabriela von Wietersheim.

The firm did not reply to our inquiry about the deal.

Binder Groesswang has advised Blockpit GmbH on its USD 10 million Series A financing round. DLA Piper advised lead investor MiddleGame Ventures.

In addition to advising the lead investor, DLA Piper coordinated other investors including Fabric Ventures, Force over Mass Capital, Tioga Capital, and Avaloq Ventures.

According to the DLA Piper, MiddleGame Ventures is a Luxembourg-based fintech venture capital firm.

According to Binder Groesswang, Blockpit is a Linz-based startup specializing in control software for crypto investors. The raised capital will primarily be used to accelerate European growth, as Blockpit’s medium-term goal is to operate in all European markets. The firm also advised Blockpit on its 2020 acquisition of Germany’s 21 Consulting (as reported by CEE Legal Matters on September 15, 2020).

Binder Groesswang’s team was led by Partner Christian Zwick and included Counsel Stefan Frank, Senior Associates Hermann Beurle and Johannes Bammer, and Associates Michael Mittermair and Alexander Scharkosi.

DLA Piper’s team was led by Vienna-based Partner Christoph Mager and included Counsel Johanna Hoeltl and Senior Associate Christian Knauder.

Binder Groesswang has advised Anadi Bank on the framework for offering banking services within Austria’s tobacco shops.

According to the firm, banking services will be offered under the Marie brand name, and “it will soon be possible to have bank accounts and cards, make incoming and outgoing payments and obtain consumer loans at numerous tobacconist shops. In addition, each partner shop will have a tablet that is directly connected with the systems of the Austrian Anadi Bank; using this tablet, customers will be able to choose and order the available banking products themselves. It will also be possible to make cash transactions at the participating tobacconist shops.”

The Binder Groesswang team included Partner Stephan Heckenthaler, Counsel Stefan Frank, and Associate Andreas Perkonig. 

The firm could not provide further details on the deal.

Herbst Kinsky has advised Berlin-based VC firm Project A and Munich-based Senovo Capital and Schoenherr has advised Digital+ Partners on the USD 20 million financing round of Anyline. Brandl Talos advised Anyline on the deal.

Other investors included Push Ventures and Hansi Hansmann.

According to Herbst Kinsky, “founded in 2013 in Vienna, Anyline has established itself as a market leader in the field of mobile text recognition. Using the latest and most innovative approaches in artificial intelligence, Anyline enables any mobile device to process written characters in real-time, even when offline.”

Herbst Kinsky’s team included Lawyers Philipp Kinsky, Carl Walderdorff, and Philipp Herold.

Brandl Talos’ team was led by Partner Roman Rericha and included Senior Associate Adrian Zuschmann and Associate Elena Ciresa.

Schoenherr’s team included Partner Thomas Kulnigg, Attorney Clemens Gaugusch, and Associate Dominik Tyrybon.

Cerha Hempel, working with Gowling WLG as German counsel, has advised the SAN Group on the acquisition of Germany-based AniCon Labor GmbH and Campus Grundstucks GmbH. 

The parties did not disclose any details regarding the purchase agreement. 

AniCon Labor was founded in 2005 as a service laboratory. According to Cerha Hempel, “today AniCon is one of Germany’s leading lab service providers for livestock and is worldwide known as a modern laboratory center with comprehensive experimental opportunities for poultry, swine, cattle, sheep, goats, and fish.”

According to Cerha Hempel, SAN Group’s main businesses are Sanphar (animal health) and bio-ferm (biotechnological crop protection) together with the Austrian construction and real estate company SAN Real, Singapore-based SAN Pacific Investments, and the recently acquired US crop protection and fertilizer company Westbridge.

Cerha Hempel’s team included Managing Partner Albert Birkner, Counsels Katharina Majchrzak and Armin Schwabl, and Senior Associates Nadine Leitner and Alistair Gillespie.

Cerha Hempel did not reply to our inquiry on the matter.

Former Baker McKenzie Senior Counsel Georg Krakow joins DLA Piper’s white-collar crime, compliance, and internal investigations team in Vienna as Partner, alongside a team of four.

According to DLA Piper, “Krakow represents companies, institutions, and individuals in all areas of white-collar criminal law and compliance issues. One of his main areas of expertise is the clarification and evaluation of criminal law facts through internal investigations He also helps clients avoid lengthy proceedings by creating and running comprehensive risk analyses and implementing efficient compliance systems.” 

Krakow spent ten years with Baker McKenzie before joining DLA Piper. In 2009, he became Head of the Cabinet of the Austrian Federal Ministry of Justice where he worked on economic crime cases and was involved in civil and penal legislation and, before that, he was a senior public prosecutor based in Vienna.

“With the recent increase in white-collar crime, compliance, and internal investigations, it’s important to intervene in a well-founded, calm, and efficient manner,” Krakow commented. “DLA Piper also has an impressive international criminal law team and I am very much looking forward to working with them.”

“We are very pleased to welcome Georg Krakow and his experienced team,” added DLA Piper’s Country Managing Partner in Austria Claudine Vartian. “With this appointment, we are taking a major step in our strategic development.”

Krakow joins with a team consisting of Senior Associate Miriam Astl and Associates Dimitra Geronta, Martin Kaplans, and Jasmin Zareie.

E+H has successfully represented Austrian Airlines before the General Court of the European Union in a state aid-related proceeding.

According to E+H, “the General Court of the European Union has dismissed as unfounded actions brought by Ryanair and Laudamotion against the state aid granted to Austrian Airlines, Austria’s leading airline. Ryanair and Laudamotion sued against the state aid of EUR 150 million granted by the Republic of Austria to Austrian Airlines, which was approved by the European Commission last year. This state aid compensated Austrian Airlines for losses resulting from worldwide travel restrictions during the Corona pandemic from early March to mid-June 2020. It was part of a total financing package worth EUR 600 million. This also included an equity injection of EUR 150 million from Austrian’s parent company Lufthansa and a state-guaranteed bank loan of EUR 300 million.” 

According to the firm, “in contrast to its previous judgments on pandemic-related state aid to the German Condor, the Dutch KLM, and the Portuguese TAP, in which the General Court overturned the European Commission’s decisions because of deficiencies in the statement of reasons, the General Court in the present case considered the state aid to be compatible with the internal market. In particular, the General Court denied the alleged discrimination against Ryanair and Laudamotion. The General Court thus followed the reasoning of the European Commission, which was supported in the proceedings by the Republic of Austria, the Federal Republic of Germany, and Austrian Airlines as interveners. The decision of the General Court is not yet final – Ryanair and Laudamotion can now appeal to the European Court of Justice.”

E+H’s team included Partner Andreas Zellhofer and Attorney Florian Sagmeister.

Blockchain technology has – so far – not lead to a transfer of the world’s land registers onto this technology or to a “tokenization” of title (documents). The only significant exception in this respect is Georgia where a purchaser’s title to real property can be registered by execution of a smart contract.

Virtual parcels

In contrast, however, virtual worlds where virtual land can be acquired (for very real money) are spreading. One example for such a virtual world is Cryptovoxels (https://www.cryptovoxels.com/). Cryptovoxels serves (according to our understanding) primarily as a “digital art space” where digital art is exhibited and also created. Thus, exhibitions can be visited in Cryptovoxels and NFT-art can be viewed and subsequently also purchased (via the platform OpenSea).

Every parcel of “real estate” created in Cryptovoxels, virtually every plot of land in Cryptovoxels on which visitors can wander and view art by using avatars, has a unique (token) number. For example parcel #4650 was purchased in Cryptovoxels for the Museum Francisco Carolinum in Linz (https://www.cryptovoxels.com/parcels/4650). The owner of token #4650 is clearly identified on the page of the respective parcel. In turn, a link (a URI) is connected to this token #4650 via which the metadata for this “parcel” can be viewed; part of this metadata is again the link to parcel #4650 together with further information on the location (coordinates), size, height etc. of the parcel. This metadata shows, for example, that the property linked to token #4650 is exactly 119.879997286167m2 and, hence, serves as virtual land register. This plot – i.e. token #4650 of smart contract 0x79986aF15539de2db9A5086382daEdA917A9CF0C – was and can be traded via the platform opensea.io.

After having acquired “real property” in Cryptovoxels the new owner can “construct” buildings on his land (as the mentioned Museum Francisco Carolinum has done; see plot #4650 via the mentioned link).

Lastly, the owner can of course also sell the respective property off after having “developed” it. This again works by executing a smart contract and transfer of the respective token into the purchaser’s wallet. Given that Cryptovolxels runs on the Ethereum-Blockchain and the unchangeable link between the token and the description of the property, a purchaser can be sure that the seller has valid title to this property.

The current success of this virtual world and the many others – i.e. of the respective virtual assets – can be seen by the increase of the prices per virtual sqm in recent months (which was also linked to the rise of the price of Ether before the most recent “price corrections” of this crypto-currency took place).

Conclusion

It remains to be seen whether this new form of investment into (un)real property is here to stay or just a short trend. For the time being, however, it seems that the tokenization of titles to “properties” are better suited for the virtual realm than the real world where trust in centrally managed land registers is still high.

By Constantin Benes, Partner, Schoenherr

DLA Piper has advised UBM Development AG on the placement of a sustainability-linked bond with a value of EUR 100 million. Clifford Chance and Dorda advised joint lead managers, bookrunners, and dealer managers HSBC Continental Europe and Raiffeisen Bank International AG.

According to DLA Piper, “UBM Development’s strategic focus is on green building and smart office in major cities including Vienna, Berlin, Munich, and Frankfurt. The company offers all development services from a single source, from planning to marketing. The shares are listed on the Prime Market of the Vienna Stock Exchange.”

DLA Piper’s team included Partner Christian Temmel and Senior Associate Christian Knauder.

Clifford Chance’s team in Germany was led by Partner George Hacket.

Dorda’s team was led by Partner Tibor Varga and included Associate Anneliese Keinrath.