Intellectual Property Law Internet Law IT Law Computer Law

In the era of the Internet and processing of documents in digital form, Tomasz Rychlicki must go to the Supreme Court, to buy stamps for the sum of 12 Polish złoty. He has to stick these stamps on the sheet of paper on which he has to include and write down the signature of the judgment of the Supreme Court of 11 March 2008 (act signature II, CSK 539/07), which he knows about only from information made available in the Bulletin No. 7/08 of 8 August 2008, PDF file, it only says that:

Username (nickname) which is used by a person in Internet services is a subject to legal protection on the same grounds as the protection of personal name, pseudonym or company.

Tomasz Rychlicki has to write his e-mail address on the same sheet of paper together with judgement’s act signature and stuck and cross out (sic) stamps. When he sends this sheet of paper by fax, Tomasz Rychlicki receives the ruling via e-mail sent to the specified e-mail address. Nice ladies are working in the Supreme Court, who are really willing to help, but some procedures are set out by ******** (autocensorship). Piotr Waglowski has also wrote some comments about this judgement. After our brief conversation I was “elected” to get the text of this judgment.

Penalties for a total of more than $ 1.2 million Polish złoty were imposed by the Office of Competition and Consumer Protection (UOKiK) on The Association of Authors (ZAiKS) and the Polish Filmmakers Association (APF), because of their agreement “to eliminate competition between them”.

In December 2005, at the request of the Board of Editors Press, UOKiK has began antitrust proceedings against ZAiKS and SFP. The decision to penalised those two organisations was issued on 29 August.

UOKiK has found that since 2003, ZAiKS and SFP, seeking to guarantee itself the highest profits, have operated under the unlawful antitrust agreement. SFP and ZAiKS concluded an agreement which established a uniform, rigid rates for the use of audiovisual works (such as DVD movies) and refused to negotiate them - announced Malgorzata Krasnodębska-Tomkiel (the President of UOKiK) at a press conference in Warsaw.

The decision of the President of the Office of Competition and Consumer Protection, DOK - 6/2008 of 29 August 2008 and the official press release are available at www.uokik.gov.pl website in Polish language.

Joe Gratz wrote a post about a very interesting judgment in the case Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. August 20, 2008), PDF file.

The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Sen. Rep. No. 105-190 at 2 (1998).

I still wonder why such regulation were not included in analogical provisions of Polish or European Union law.

There is a PC game called Beijing 2008. It looks like the Polish anthem is the only one to be badly recorded and by “badly” I do not mean the sound quality. There is a reaction in the net of course. You may find an article availabe at www.wp.pl website which is devoted to this issue. But I was more intrigued by such a statement.

Authors’ right to the anthem are the property of the whole nation so there is a lack of obligation to recieve a consent to use it. But it does not mean it may be any use - answered Iwona Radziszewska -spokesperson of the Ministry of Culture and National Heritage of the Republic of Poland.

In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007), PDF file. If you are not interested in the nuances of US law then the title of an article available at www.news.com website will tell you all about the issue of the aforementioned judgment.

Judge: Man can’t be forced to divulge encryption passphrase.

Couple of years ago I thought that such problem could be solved by simple sentence.

You have the right to remain silent and refuse to answer questions.

But Civil law lawyers will recall old Latin maxim nemo se ipsum accusare tenetur at once. Polish Criminal Proceedings Code of 6 June 1997. (Dziennik Ustaw No 89, pos. 555), with later changes.

Art. 74. § 1. The defendant has no duty to prove his/her innocence or a duty to provide evidences for his/her disadvantage

Rules of Ethics for Patent Attorney Profession (PDF file, Polish language). Uniform text with changes that were passed during IV National Convention of Patent Attorneys of 7 September 2005.

§ 3
Patent attorney shall perform his/her professional duties according to his/her best will and knowledge with
appropriate precision and conscientiousnes, acting in proper moderation and dignity.

Please note that Polish patent attorneys may represent clients in all industrial property law matters (i.e. patents, trademarks, designs, etc.) and there are no specific professions such as trademark agents.

My post in Polish language is long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, act signature I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in §23. This provision outlines the personal image as one of the personal property - an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image provideded by provisions included in the Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided by regulations in the Act of 26 January 1984 on Press Law, the Penal Code and the Act of 29 August 1997 on Personal Data Protection. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

and from the European Convention on Human Rights of 4 November 1950.

There is a story of some logo “borrowing” described at www.ecogeek.org website. Paweł Tkaczyk posted a short note about a similar situation in Poland. If someone of you knows about any of such “borrowings” or “similarities” then I’d be happy to read about it. Trust me, I’m not going to sue anyone I just need it for, let’s say “scientific” purposes. :)

My last post has triggered some reponses so I’d like to clarify it, in a really short explanation. There is no requirement for copyright protection and enforcement in Poland. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes, explicitly provides that:.

Art. 1, sec. 4
The creator is eligible for protection independently of compliance with formalities of any kind.

How does it work in the US? 17 U.S.C. § 411. Registration and infringement actions (emphasis mine):

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title (…)

What does it mean? It means that an effective enforcement of copyright rights is not so easy for the owner. One more time - it applies to any United States work.

According to the recent judgment of the Polish Supreme Court of 30 June 2008, act signature I KZP 8/08, PDF file, in Polish language, buying counterfeited goods is not fencing. For more information and commentary please refer to Class46 website.

I browsed through specific or peculiar artworks of Rob Nance that are available at his website - www.artforrobots.com. I started to think more when I saw “Poseable Paper Pope”. Parody. Bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.

Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, those Internet’s contracts“.

Today, I read an old article available at www.nytimes.com website (January 2007) about Levi’s actions connected with protection of a trade mark consisting of a design for pant’s pockets and I immediately recalled myself a judgment of the Distric Administratice Court in Warsaw of 22 February 2006. Act signature VI SA/Wa 805/05.

Contrasted trade marks that are meant as signs for clothes (among other things for pants) resemble to each other to the extent that it may lead into the confusion of a consumer as regard to origin of goods in the regular course of trade (as defined in the article 9 sec. 1 pt 1 and 2 of the Act of 31 January 1985 on Trademarks (Dziennik Ustaw No 5, pos. 17 with later changes) if both marks include horizontal seams crossing down the pocket which in its shapes reasemble seagull’s (eagle) wings and where such element is simultaneously predominant for both signs.

I do not want to brag about myself but I wrote once in the post titled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?

Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.

Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.

Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.

T. Rychlicki, Legal questions about illegal art, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.

Adidas Am., Inc. v. Payless Shoesource, Inc., 3:01-cv-01655 (D. Or. Nov. 8, 2001). $305 million judgment. The issue was a trade mark infringement of 3 stripes. So, that’s more than $100m per stripe as Marty Schwimmer has noted. There are some documents related to this case at Marty’s website too. Adidas is very protective when it comes to this sign/mark. As an example you may read cases that were brought before The Court of Justice of the European Communities. C-102/07, adidas and adidas Benelux.

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.

C-408/01, Adidas-Salomon AG and Adidas Benelux BV v. Fitnessworld Trading Ltd., OJ C 304, 13.12.2003, p. 5.

1. A Member State, where it exercises the option provided by Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, is bound to grant the specific protection in question in cases of use by a third party of a later mark or sign which is identical with or similar to the registered mark with a reputation, both in relation to goods or services which are not similar and in relation to goods or services which are identical with or similar to those covered by that mark.

2. The protection conferred by Article 5(2) of Directive 89/104 is not conditional on a finding of a degree of similarity between the mark with a reputation and the sign such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark.

3. The fact that a sign is viewed as an embellishment by the relevant section of the public is not, in itself, an obstacle to the protection conferred by Article 5(2) of Directive 89/104 where the degree of similarity is none the less such that the relevant section of the public establishes a link between the sign and the mark. By contrast, where, according to a finding of fact by the national court, the relevant section of the public views the sign purely as an embellishment, it necessarily does not establish any link with a registered mark, with the result that one of the conditions of the protection conferred by Article 5(2) of Directive 89/104 is then not satisfied.

Well, what can I say? Such marks and sign will always bring public controversy. I can unmodestly recommend you my post titled “Non-traditional trademarks in Polish case law” and “Reclaim Magenta“.

MDY v. Blizzard, 2:06-cv-02555-DGC (D. Ariz. Oct. 25, 2006). More details, comments and materials are available at www.publicknowledge.org and at free and irreplaceable www.justia.com websites.

Would you like to know how it looks in Poland? In short. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Art. 75. 1. Unless otherwise provided in the contract, the acts specified in paragraph 4(1) and (2) of Article 74 shall not require the consent of the owner of rights where they are necessary for the lawful acquirer to be able to make use of the program according to its intended purpose, including the correction of errors.
2. The following acts shall not require authorization from the owner of rights:
(1) the making of a backup or reserve copy insofar as such a copy is necessary for the use of the computer program; unless otherwise provided in the contract, the copy may not be used at the same time as the computer program;
(2) analysis and study of and experimentation with the operation of the computer program by the person authorized under the contract to make use of a copy of the program, in order to ascertain its underlying ideas and principles, if the person concerned performs the above acts at the time of the operations associated with the loading, display, running, transmission or storage of the computer program;
(3) reproduction of the code or translation of the form thereof within the meaning of paragraph 4(1) and (2) of Article 74 where this is essential to the securing of the information necessary to achieve interoperability between an independently created computer program and other programs, and provided that the following conditions are met:
(a) the acts are performed by the licensee or by another person enjoying the right to use the copy of a program or, on their behalf, by a person authorized to do so;
(b) the information necessary to achieve interoperability was not already easily and rapidly accessible to the persons referred to under (a);
(c) the acts are confined to those parts of the original program that are necessary to achieve interoperability.
3. The information referred to in paragraph 2(3) may not be:
(1) used for purposes other than the achievement of the interoperability of the independently created computer program,
(2) communicated to other persons except where that should prove essential to the interoperability of the independently created computer program,
(3) used for the development, production or marketing of a computer program the form of which is essentially similar, or for any other act in violation of copyright.