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Freedom of the Arts

Georg Huber und Barbara Rainer

In Austria, freedom of the arts is a basic right guaranteed by the constitution. This means that in principle the state may not restrict neither methods, the content nor trends in artistic activities. The difficulty is that art is a “dynamic term subject to change over time”, which means that a definition of “art” is not possible (and also isn’t desirable). So what or who divides “art” from “non-art”? Qualifying something as “non-art” would mean the loss of the constitutional protection. An example is the “degenerate art” prohibited in the Third Reich.


To avoid these difficulties and thus any judgment regarding art by the state, the definition of “art” is open. Basically, it includes every form of art, regardless of whether it is generally considered as being art or not. Apart from the traditional art genres such as visual arts, literature, music etc., unconventional art forms (e.g. happenings, land-art or graffiti) are also included. Consequently the happening at Vienna University in 1968 titled “Art and Revolution” went down in art history, although the average man probably didn’t see it as being art at the time.

It is just this open definition of art that allows “revolutions” in art and leaves room for new developments, since art genres that are not socially recognized are also entitled to constitutional protection. Art forms that may be contradictory to the spirit of the times must not be prohibited or prevented. Therefore, the scope of this constitutional right cannot be defined by the term “art”, but essentially only by its limitations. Even artistic freedom has its bounds. Wherever art encroaches on the rights of others or on other constitutional rights, there are limits. Of course, interests always have to be weighed when these limits are set and a (general) suppression of specific artistic movements must not be the result.

Art is also subject to general law. This means that a pianist could be fined for “excessive noise” for incessant practicing, provided that the right of a neighbor to quiet outweighs the right of the pianist to artistic freedom. This can only be decided on a case to case basis. In the cases of satire and caricature the right to dignity stands against the right to artistic freedom. Satire and caricatures are forms of art that Highlight injustices by distorting and exaggerating reality. However, they must not go so far as to violate the essence of human dignity or the entire public image and reputation of an individual. The “Böhmermann” case, which also involves the right to freedom of opinion, is a good example.

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Dr. Georg Huber, LL.M. ist Partner der Innsbrucker Rechtsanwaltskanzlei Greiter Pegger Kofler & Partner. Er hat in Innsbruck und Chicago studiert und ist sowohl in Österreich als auch New York als Rechtsanwalt zugelassen. Zu seinen bevorzugten Tätigkeitsgebieten zählen unter anderem IT- und IP-Recht, wobei er sich auch immer wieder mit urheberrechtlichen Fragen befasst.


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