Polish IP & IT law » 2008

Archive for: December, 2008

“Pirate” politician

December 23rd, 2008, Tomasz Rychlicki

According to a recent article which is available at wp.pl website, in Polish language, the court trial of Tomasz Sz., former member of the Civic Platform and deputy mayor (or vicepresident if you prefer) of Kraków city will start in mid-January next year. Tomasz Sz. along with other former Kraków city’s managers is facing charges for mismanagement and corruption. The prosecutor also alleges that Tomasz Sz. in order to achieve financial gain, downloaded from the Internet illegally copied software for GPS devices without the consent of its producer and programs that were created for removing security measures implemented to prohibit the operation of software in full. The price of the aforementioned software (with maps included) was estimated at 850 PLN. The said software was found on the Parliamentary’s laptop assigned to the politician.

Now, what about Polish criminal law regulations on computer (and not only as you can see from the above example) software copyright infringement? There are proper provisions included in the Criminal Code (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine].

There is also the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

Chapter 14
Criminal Liability
Art. 115. 1. Any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another shall be liable to a term of imprisonment of up to 3 years, restriction of freedom or a fine.

2. Any person who, without mentioning the creator’s name or pseudonym, discloses the work of another either in its original or in a derived form, or a performance, or who publicly distorts a work, a performance, a phonogram or videogram or a broadcast, shall be liable to the same penalty.

3. Any person who, with a view to making a material profit in a manner other than that specified in paragraph 1 or 2, infringes the rights of the author or neighboring rights within the meaning of Articles 16, 17, 18, 19 paragraph 1, art. 19¹, 86, 94 paragraph 4 or article 97 or without performing his duties as mentioned in article 19³ paragraph 2, 20 paragraphs 1-4, 40 paragraph 1 or paragraph 2,
shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 116. 1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.

4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 117. 1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

Art. 118. 1. Any person who, with a view to making a material profit thereby, acquires the object constituting the material embodiment of a work, a performance, a program or a disclosed videogram, or reproduces it without authorization or without respecting the conditions imposed, assists in the sale of the said object, conceals it or assists in its concealment, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

3. If the perpetrator of the infringement defined in paragraph 1 or 2 on the basis of surrounding circumstances should and can assume that the item was obtained through criminal act,
he shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.

Art. 118¹. 1. Any person who manufactures the devices or their components intended for the unauthorized removal or circumvention of effective technical measures against playing, copying or reproduction of works or objects of related rights or any person who is making a turnover of such devices or their components, or advertise them for sale or lease,
he shall be liable to a term of imprisonment of up to three years, restriction of freedom or a fine.

2. Any person who owns, maintains or uses the device or their components, referred to in paragraph. 1,
he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 119. Any person who obstructs or hinders the exercise of the right to monitor the use of a work or artistic performance, or who refuses to give the information provided for in Article 47, shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 120. (repealed)

Art. 121. 1. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118 or article 118¹, the court shall decide to confiscate the objects resulting from the infringement, even if they do not belong to the perpetrator thereof.

2. In the case of condemnation for an act referred to in Article 115, 116, 117 or 118, the court may decide to confiscate the objects that served for the commission of the infringement, even if they do not belong to the perpetrator thereof.

Art. 122. The acts referred to in Articles 116, paragraphs 1, 2 and 4, 117, paragraph 1, 118, paragraph 1, 118¹ and 119 shall be proceeded against on a complaint from the injured party.

Art. 122¹ In cases of crimes referred to in Articles 115-119 a competent organization for collective management of copyright and related rights is also deemed as sufferer.

Art. 123. The Minister of Justice may specify by ordinance the regional courts within the jurisdiction of a particular voivoide court that are competent to hear cases relating to the infringements referred to in Articles 115-119.

Just register or do not sue

December 23rd, 2008, Tomasz Rychlicki

Well… one could came to such conclusions reading article available at informationweek.com website regarding the case Apple, Inc. v. Psystar Corp., 3:08-CV-03251 (N.D.Cal., July 3, 2008). But according to Apple’s statements and pleadings the company is the legitimate owner of, among others, United States copyright registrations TX4-669-971 (Mac OS); TX5-401-457 (Mac OS X); TX6-849-489 (Mac OS X Leopard Version 10.5); TX4-991-736 (Mac OS X Server); and TX6-849-684 (Mac OS X Server Version 10.5 Leopard). Anyway, I’d like to recommend you to read my post entitled “Copyright registration” as a quick reminder for all my readers about differences in copyright registration requirements or lack thereof.

Categories: 17 U.S.C. | US law | copyright law.

“Piracy” in Poland

December 22nd, 2008, Tomasz Rychlicki

By the term “piracy” I do not mean “an offense against humanity” as defined in U.S. v. Furlong, 18 U.S. 184, 5 L. Ed. 64 (1820) or that “the crime of piracy comprehends an act upon the high seas” (61 Am Jur 2d Piracy § 8). Although, I am being aware of the Oxford English Dictionary definitions such as “1603 T. Dekker Wonderfull Yeare sig. A4, Banish these Word-pirates (you sacred mistresses of learning) into the gulfe of Barbarisme” or “1668 J. Hancock Brooks’ String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies” or “1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates” or even “1706 D. Defoe Jure Divino Pref. p. xxvii, Gentlemen-Booksellers that threatned to Pyrate it, as they call it, viz. reprint it, and sell it for half a Crown”.

Anyway, according to the article which is available at onet.pl website, in Polish, the District Court in Koszalin has sentenced Łukasz D. – a former student of the Koszalin University of Technology (Politechnika Koszalińska) for a half year of imprisonment for computer “piracy”. The judgment was suspended for two years. The court found Łukasz D. guilty of the theft of 49 programs (of a total value of 180 709,66 PLN). Łukasz D. could even face 10 years in prison, but the court took into account his attitude during the investigation, and mitigated the sentence. The mitigation was also requested by the prosecutor in his final speech.

The case of 19 students from Koszalin who were involved in copyright infringement in P2P networks was widely publicized in Poland because the Police, Customs officers and private investigators from the Polish Society of the Phonographic Industry did not inform the vice chancellor of the Koszalin University of Technology (for my US English readers – the president) about their action which took place in university’s dorms. Academia authorities have deemed such operation as violation of the autonomy of universities and challenged the search action (which was performed without a proper search warrant, just on the basis of an official legitimacy of the Police) before the Public Prosecutor’s office. The Police search action was also officially condemned by the Conference of Rectors of Academic Schools in Poland and students organized pickets at the center of Koszalin. However, the Public Prosecutor’s office considered the complaint as unfounded and approved the dorms’ search.

Poland: cross-border reputation

December 21st, 2008, Tomasz Rychlicki

On 7 February 1996, the American company Tiffany & Broadway Inc. Div. of Texpol has applied before the Polish Patent Office (PPO) to register the word-figurative trade mark “TIFFANY & BROADWAY, Inc.” R-153643 in class 3 for goods such as hair care preparations, washing and cleaning preparations, teeth cleaning preparations, shoe polish, skin-care preparations, dish washing preparations, deodorants, perfumes, eau de Cologne, in class 5 for goods such as dietetic substances adapted for medical use and food for babies, in class 8 for goods such as cutlery and razors, in class 16 for paper tablecloths, in class 18 for trunks and suitcases, umbrellas and parasols, saddlery, belts, gallantry made of leather and imitation leather as well as for goods in classes 24, 25, 28, 30, 32, 33, 34, 35, 36, 38, 41, 42, 43, 44, 45. The PPO granted the application on 1 April 2004. In this case the term of 8 years of trade mark application proceedings was not a joke at all.

The cancellation proceedings were started by another American company – Tiffany & Co. from New York – based on article 8(1) of the old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with later amendments:

A trade mark shall not be registrable if:
(i) it is contrary to law or to the principles of social coexistence;

The New York’s company claimed that its trade marks had a reputation and were famous and that the Tiffany & Broadway registration was made in bad faith, leading to the watering down (early Polish translation of dilution concept) of Tiffany’s trade marks. The PPO agreed and invalidated the contested trade mark. Tiffany & Broadway appealed to the Voivodeship Administratice Court (VAC) in Warsaw. The company noted that Tiffany & Co. did not provide evidence of any business activity in Poland and that none of New York’s company trade marks had been registered in Poland. According to Tiffany & Broadway article 8(1) does not provide protection for famous marks, or marks that should be protected despite the absence of registration. The PPO responded that although it is true that the goods that are signed by Tiffany & Co trade marks are available in Poland only in the secondary circulation/market, but its trade marks are renowned and associated and perceived by consumers with luxury goods, among other things, thanks to the novel and the movie “Breakfast at Tiffany’s“.

The Voivodeship Administratice Court in Warsaw dismissed the appeal in its judgment of 24 October 2008, case file VI SA/Wa 214/08. The Court held that there is no doubt regarding the reputation of TIFFANY trade mark. There are very few so strong and famous brands. In the court’s opinion the Tiffany’s trade mark is very attractive and it has huge advertising value. Tiffany has also proved its international reputation and it was not obliged to prove its existence specifically in Poland, because, in the Court’s view, the reputation is international/world wide – across borders. The VAC held that Tiffany & Broadway was aware of the existence of Tiffany’s reputation and trade mark registration for Tiffany & Broadway could lead to dilution of Tiffany’s trade marks.

Very good questions

December 19th, 2008, Tomasz Rychlicki

Quis custodiet ipsos custodes? asked Juvenal in Satires, VI, 347. My friend Piotr Waglowski asks very important and more specific questions (in Polish language) regarding the operation of Warsaw’s CCTV systems. It all started when he received internal documents about bonuses that every employee receives when he observes and spot a crime. There are no bonuses for counteracting of such crimes. The director of Zakład Obsługi Systemu Monitoringu set rates for bonuses based on crimes that each employee spots. There is 15 points for crimes such as robbery, rape, fight and 3 points for an offence of “hooligans’ nature” such as damaging the property, 2 points for driving intoxicated, theft or appropriation of property of value below 250 PLN (it is an offence not a crime under the Polish law) and also 2 points for wanted persons and juvenile who are present on streets after 10 pm. There is also 1 point for “persons lying down” – which probably means drunk or homeless person.

Categories: criminal law | personal data | personal rights.

Industrial design, case VI SA/Wa 1827/08

December 12th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 11 December 2008, case file VI SA/Wa 1827/08, ruled that the protection of an industrial design may only apply to the appearance of an object – its external appearance, not to its internal structure. The cassation compliant bought before the Supreme Administrative Court was rejected in a decision of 16 December 2009, case file II GSK 238/09.

This judgment concerned the industrial design “Zadaszenie drzwi” (in English: door canopy), Rp-9201.

Wzór Przemysłowy Rp-9201

See also my post entitled “Polish case law on industrial designs“.

Poland: special law for Euro 2012 trade marks?

December 4th, 2008, Tomasz Rychlicki

In the article entitled “Nie każdy może skorzystać na Euro 2012“, the Polish newspaper Rzeczpospolita published recent news regarding Euro 2012 brands. According to Rzeczpospolita, all companies that would like to exploit the production of gadgets related to Euro 2012 will have to reckon on their limitations, because all the trade mark rights and patents belong to the Union of European Football Associations (UEFA). Their rights will be probably clarified by a special law.

Soon there will be available a manual for companies with instructions on how to obtain a licence to use the logo and name Euro 2012. It’ll be made on the model of the manual for the 2012 Olympic Games in London. PL 2012 (which is the coordinator and overseer of preparation undertakings for Euro 2012 in Poland) also wants to cooperate with the Police and Customs officers to eliminate imports of clothing that infringe on trade marks rights.

A major challenge for organizers will be ambush marketing, because examples of this kind of activity appeared during the championships in Austria and Switzerland. To avoid such problems there will be created a so-called “clean area” around stadiums, where companies which are competitors of the tournament sponsors will not be allowed to place their ads or logos and trade marks. Also, UEFA does not want to let online bookmakers to appear or being involved in sponsorship of Euro 2012. Accordingly, all ads of online bookmakers (formally, this kind of betting is banned in Poland) should disappear from the vicinity of stadiums.

Categories: Class46 post | Polish law | advertising law | counterfeiting | counterfeits.