YEARBOOK 2009 / I - AIPPI

Austria
Autriche
Österreich
Report Q194
in the name of the Austrian Group
by Christian Gassauer–Fleissner
The Impact of Co-ownership of Intellectual Property Rights
on their Exploitation
Discussion and Questions
I) Analysis of the current substantive law
1) The regulation of co-ownership may depend on the origin of co-ownership.
It may be considered that, in case the object of an intellectual right (esthetical, technical or
commercial) is jointly created by two or more persons, the rules applicable to such a situation
may be different from those applicable in the situation when the co-ownership results from
the division of the same right among different persons as the consequence, for example, of
heritage or a division of a company.
Also, there may be the situations where the co-ownership is imposed in fact by one party
on the other in case of some technical creation (for example in case of the improvement or
modification of the previous creations which not always may result in the independent right).
Therefore, the groups are invited to indicate if, in their national laws, the rules related to the
co-ownership of IP Rights make any distinction in the applicable rules to the co-ownership of
an IP Right in case the origin of the co-ownership rights is not voluntary but results from other
situations, including the division of a right in case of a heritage.
In this context the Groups may also indicate if there are any legal definitions of co-ownership
of the IP Rights adopted in their countries and what these definitions are.
The national rules do not provide for a distinction between co–ownership created voluntarily
or involuntarily. There do not exist specific legal definitions for co–ownership of IP rights.
Basically the provisions of the General Civil Code apply. The General Civil Code is the
statutory basis for several concepts of “legal communities”, amongst them the co–owner
community and the civil law association. As to provisions dealing specifically with IP rights it
is essential whether these provisions are to be qualified as leges speciales to the provisions of
the General Civil Code regulating co–ownership or to the provisions governing the civil law
association. Unfortunately the delimitation of these two legal concepts is rather complicated.
Article 1175 of the General Civil Code basically stipulates that a civil law association is being
established when two or more persons contractually agree to join labour or property for joint
benefit. The contribution of the respective associates may therefore consist in any kind of
labour, physical or monetary assets or rights such as for instance intellectual property rights.
According to prevailing doctrine and case law the civil law association is not an association
having separate legal personality. The property of the civil law association is therefore co–
owned by its associates.
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