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Archive for: copyright law

Copyright law, case I C 471/16

April 22nd, 2016, Tomasz Rychlicki

Niezależny Samorządny Związek Zawodowy “SOLIDARNOŚĆ” (Independent Self-governing Trade Union “Solidarity”), the owner of the figurative European Union trade mark EUTM no. 014026454, sued Czesław Mozil, a Polish singer known also as Czesław Śpiewa (Czesław sings), for the infringement of copyrights and personal interests. Mr. Mozil has recorded and published a song and a TV clip entitled “Nienawidze Cię Polsko” (I hate you Poland) in which the well-known and iconic “SOLIDARNOŚĆ” logotype was also presented. NSZZ “SOLIDARNOŚĆ” demanded 500.000 PLN of compensation.

EUTM no. 014026454

The District Court in Kraków in its judgment of 8 April 2016 case file I C 471/16 dismissed the case. The Court held that the logo was used in the video as a symbol of Poland and as a Polish identity, and not as a logotype that identifies a trade union, so there was no infringement of personal rights. Any attempts to limit forms of artistic expression would violate the constitutional principle of freedom of artistic expression. The judgment is not final.

Copyright law, case SK 32/14

July 26th, 2015, Tomasz Rychlicki

The Polish Constitutional Tribunal in its judgment of 23 June 2015 case file SK 32/14 ruled on the unconstitutionality of Article 79(1)(3)(b) of the ARNR that provided treble licence fee for culpable infringement. The Tribunal held that this provision violated the right of ownership and the principle of equality under the law, by disproportionately burdening copyright infringer in relation to infringers of other rights.

Copyright law, case K 15/13

March 27th, 2015, Tomasz Rychlicki

The Polish Constitutional Tribunal in its judgment of 17 February 2015 case file K 15/13 held that the contested by the Ombudsman provisions of Article 115 section 3 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments, is in conformity with Article 42 paragraph 1 of the Polish Constitution.

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.

The Ombudsman argued that the scope of criminal penalties set by provision of article 115(3) of the ARNR are too broad and unduly limits the rights and freedoms. The fundamental principle of criminal law – nullum crimen sine lege, is included in the article 42(1) of the Polish Constitution. The definition of a crime shall be strictly construed and shall not be extended by analogy.

Article 42
1. Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law
2. Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by statute – of counsel appointed by the court.
3. Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.

The Constitutional Tribunal held that the standard of definiteness of legal regulations, that is also included in the provisions of Article 42, does not preclude a margin of regulatory discretion by the state, within the criminal law. Therefore, this standard in the field of criminal regulation, although imposing higher requirements for the legislature, does not require clarity and communication to express prohibition or a legal order, to the absolute extent (judgment of the Constitutional Tribunal of 28 January 2003 case file K 2/02). The principle of definiteness (specificity) of the criminal law does not preclude the legislature to use unspecified or evaluative terms if their referents can be determined (judgment of the Constitutional Tribunal of 23 January 2003 case file K 2/02). In the case of the challenged provision of copyright law, the reference by the legislator to undefined concepts should be regarded as justified by the nature of copyright regulations, which are applied in dynamic and changing conditions in the era of new technologies. Thus, the legislator used the construction of the so-called substantive offence, i.e. an offense, which consists of the action of the offender and the result of the offense that is specified in the criminal law. In simple terms, it’s such a crime, which is determined the occurrence of a specific effect, and not the manner in which the offender caused that effect.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I Ns 700/12

March 27th, 2015, Tomasz Rychlicki

Henryk Goldszmit, better known as Janusz Korczak, has died in the Nazi-Germany maintained concentration camp Treblinka in 1942. The very popular Old doctor was also the author of many children books. The copyrights to his literary legacy are governed by the Polish Book Institute. The exact date of his death is not precisely known, however, it was determined by historians as on 6 August 1942, but for obvious reasons no eyewitness could confirm that during court proceedings that were held after the war. The County Court in Lublin in its order of 30 November 1954 case file Ns 2460/53 considered Korczak’s death on 9 May 1946. Almost 4 years after the date on which it actually happened. Therefore, according to the provisions of the Polish copyright law, Korczak’s works will be available in the public domain as of January 1, 2017.

The Modern Poland Foundation operates the school library project called Wolne Lektury (Free Readings). These e-books are freely available on the Creative Commons licenses. Dissatisfied with the fact that Korczak’s works are not yet available in the public domain, the Foundation decided to submit to the Regional Court Lublin-Zachód the application case file I Ns 700/12 for a declaration of death, seeking to establish a proper date on 6 August 1942. This day is mentioned in a number of publications as the day of deportation of Korczak and his students to the Nazi-German camp in Treblinka.

The Regional Court in Lublin in its judgment of 27 March 2015 case file I Ns 700/12 ruled that Janusz Korczak died in 1942 and not 1946. The Court decided that the most likely date of death was August 7, 1942. The judgment is not final yet.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I ACa 1663/13

August 19th, 2014, Tomasz Rychlicki

During a political campaign in 2011, Dariusz Dolczewski posted a movie clip on his profile on Facebook in which he used images of young politicians from other party. This clip had a background music taken from a rap song “Suczki” (Bitches) that was recorded by Dominik Grabowski, known as Doniu. Grabowski sued.

The District Court for Warszawa-Praga in its judgment of 12 July 2013 case file I C 504/12 held that there was copyright infringement and ordered Dolczewski to pay 17.500 PLN compensation. More importantly, the Court ruled that posting a link on Facebook can be also deemed as infringement of copyrighted works. Both parties appealed.

The Appeallate Court in Warsaw in its judgment of 7 May 2014 case file I ACa 1663/13 repealed the contested judgment and held that the politician is not liable for copyright infringement, because since the defendant was not the author of this audiovisual work (the clip), therefore he could not be found guilty for posting a link to such work. The Court also presented a very original conclusions apropos tangible and digital copy of the work. This issue arose in the discussion regarding the provision of 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 subsequent amendments.

The Court ruled that recording of a work is undoubtedly the moment when one may accept the existence of a song. Traditionally, recording always, according to the provisions of ARNR, was related to the existence of material copy of the work. In the opinion of the Court of Appeal, the so-called “tangible copy theory” must be applied to digital world. First of all, one must realize the essence of digital recording, which forms the basis of operation and content availability on the Internet. The Court noted that the difference between conventional tangible copy and a digital copy is the fact that the data stored digitally may be removed, but such data/information also have physical location on the media, can also be duplicated, but always and at any time on a material substrate in the form of a computer memory, or a recording unit, regardless of how information is stored. Only such solution allows for the use of information. Therefore, the possibility to play a song, whether on a computer or on another device determines the existence of a copy of the work in a tangible form.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Personal interests, case I C 327/11

August 30th, 2013, Tomasz Rychlicki

The case concerned class’ photos of 32 children. Such photos were placed on a social networking site naszaklasa.pl. The black and white pictures were taken between the years 1972-1980, in a public space, i.e. a public education institution. Most of them were photos of the class as a whole, not each individual student. One person who was shown in this picture demanded its removal. The administrator of a website refused. The case went through all stages of administrative proceedings, and the person concerned decided to initiate a civil suit. The plaintiff demanded an apology in the media, 20.000 PLN compensation and the payment of 50.000 PLN for a social purpose, from the owner of naszaklasa.pl

The District Court in Wrocław in its judgment of 10 May 2013 case file I C 327/11 dismissed the suit. The Court ruled that the person seeking for the protection of his or her image has to prove that such image was published and is recognizable. It results from identification of information features of an image. Moreover, the image should be recognized not only by the person concerned, but also by third parties. The image of the plaintiff contained in the pictures was not fully recognized even his colleagues from the former primary school, as evidenced by comments on the website. Publishing of any informational or shooting materials on the website only provides the opportunity to look at such meterial by others, but this does not mean automatically that such information reached to an unlimited number of people, and consequently, that information was widespread. The Supreme Court in its judgment of 10 February 2010 case file V CSK 269/09 (published in: OSNC 2010/9/127) held data published on the web are not deemed as well-known/widespread data. The Supreme Court in its judgment of 27 February 2003 case file IV CKN 1819/00 (published in: OSP 2004/6/75) held that the infringement of the image of the individual occurs when it was published without the consent of the person in the photograph and while it allows for the identification of that person.

Access to public information, case II SAB/Wa 10/13

August 8th, 2013, Tomasz Rychlicki

A Polish company requested the Ministry of Interior to disclose public information in the form of source code of software that is used by the Ministry in performing public tasks related to Voivodeships’ databases of citizens residence. The source code of a computer application was written by employees of the Ministry as part of their employment contracts. The Ministry did not answer the request and the Company filed a complaint on failure to act.

The Voivodeship Administrative Court in its judgment of 24 April 2013 case file II SAB/Wa 10/13 dismissed it. The Court ruled that according to the provisions of Article 1(1) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, each information on public matters constitutes public information in the understanding of the API and is subject to being made available on the basis of principles and under the provisions defined in this Act. The definition of “public information” is widely criticized for defining ignotum per ignotum. However, Article 6(1) of the API helps to clarify this problem.

Article 6. 1. The following information is subject to being made available, in particular on:
1) internal and foreign policy, including:
a) intentions of legislative and executive authorities,
b) drafts on normative acts,
c) programmes on realisation of public tasks, method of their realisation, performance and consequences of the realisation of these tasks,
2) entities, defined in Article 4, it. 1, including:
a) legal status or legal form,
b) organisation,
c) subject of activity and competencies,
d) bodies and persons performing functions therein and competencies,
e) property structure of entities, defined in Article 4, it. 1, points 3-5,
f) property they dispose of,
3) principles of functioning of entities, defined in Article 4, it. 1, including:
a) mode of conduct of public authorities and their organisational units,
b) mode of conduct of state legal persons and legal persons of local authorities in the area of performing public tasks and their activity within the frames of budget and non-budget economy,
c) methods of passing private-public acts,
d) methods of accepting and settling matters,
e) state of accepted cases, order of their settling or resolving,
f) conducted registers, books and archives and on methods and principles of making data there contained available,
4) public data, including:
a) contents and form of official documents, in particular:
– contents of administrative acts and other resolutions,
– documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,
b) opinion on public issues made by the bodies of public authority and by the public officers in the understanding of the provisions of the Penal Code,
c) contents of other presentations and assessments made by the bodies of public authority,
d) information on the condition of the state, local authorities and their organisational units,
5) public property, including:
a) property of the State Treasury and state legal persons,
b) other property rights to which the state and its debts are entitled to,
c) property of the units of local authority and professional and economic local authorities as well as property of legal persons of local authorities and the ill persons’ offices,
d) property of the entities, defined in Article 4, it. 1, point 5, coming from disposing of the property, defined in c. a) – c) as well as the profits from this property and its encumbrances,
e) incomes and losses of the commercial companies in which the entities, defined in c. a) – c) hold the dominant position in the understanding of the provisions of the Commercial Companies Code and disposal of this income and the method of covering losses,
f) public debt,
g) public assistance,
h) public burden.
2. The official document in the understanding of this Act is the text of declaration of will or knowledge, preserved and signed in any form by the public officer in the understanding of the provisions of the Penal Code within the frames of its competencies, directed to another entity or filed to the acts.

The Court ruled that with regard to the types of information listed in the above mentioned provision it should be emphasized, referring to definition of public information as any information about public affairs, that public information is such information that carries a message about public affairs. Bearing that in mind, the Court noted that the source code is a series of instructions and statements written in an understandable human programming language that describes the operations that should be performed by a computer, which is a result of the work of developers. The Court ruled that that the source code does not contain any message on public matters, and is only a tool used in computer programs. The fact that certain computer programs are used by public authorities to carry out public functions, does not prejudge that their source code is public information. According to established case law of administrative courts and legal commentators, disclosure of public information is made in the form of material and technical activities, and only the refusal to disclose public information and discontinuance of the proceedings is made according to the provisions of Article 16 (1) of the API, in the form of an administrative decision. However, in cases where the requested information is not deemed as public information, it is sufficient to inform the requesting party of this fact. And in any case such situation cannot be deemed as inactivity of the requested body. According to the Court, the requested information did not met the scope defined in the API.

Copyright law, case VI ACz 856/13

July 8th, 2013, Tomasz Rychlicki

The Appeallate Court in Warsaw in its judgment of 13 June 2013 case file VI ACz 856/13 dismissed the complaint against the order to submit technologically advanced equipment and software that supports electronic transactions, into the case file. The case was initiated by a Company that suspected its former licensee of using computer software despite the expiry of the license. Copyright infringement has to be properly proved by a plaintiff. In many cases, it does not require any excessive effort, especially when infringing products are already placed on the market by the defendant. Difficulties arise, however, when infringing goods are under the exclusive possession of the alleged infringer. The claim to secure evidence is provided for in Article 80(1)(i) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

Article 80. 1.
The court competent to hear the cases of infringement of the author’s economic rights in the locality where the offender conducts its activity or where his economic is located, also prior to filing suit, shall consider, within no more than 3 days of filing, an application of a party with legal interest therein:
1) for securing evidence and securing claims related thereto;

See “Trade mark law, case XXII GWo 68/12” for more on informational claims in Polish industrial property law proceedings.

Copyright law, case I CSK 617/12

July 5th, 2013, Tomasz Rychlicki

The Polish Collecting Society ZAiKS sued the publisher Bauer and demanded the disclosure of data on sale and number of issues of magazines such as “Twój Styl”, “Tina”, “Claudia” and “Świat Kobiety” which have attached DVDs with different movies. ZAiKS wanted to use this information to determine the amount of royalties that would be eligible for filmmakers (writers and performers of music, screenwriters, etc.) from the sale of movies, attached by the publisher to all those magazines. Bauer refused, saying that ZAiKS has not shown that it actually represents the artists involved in the production of various movies. Among the films inserted in magazines published by Bauer were both Polish and foreign titles. ZAiKS, despite the failure to provide proper agency agreements with specific authors or foreign collecting societies, said, that it has the right to request such information based on the provisions of Article 105 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collection societys claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

However, the courts did not agree with ZAiKS and dismissed the lawsuit. ZAiKS filed a cassation complaint. The Supreme Court in its judgment of 27 June 2013 case file I CSK 617/12 held that the case should be re-examined. The Court noted that the lower courts confused the order of proceedings. Information claims should be decided in the first place, for instance, as an interlocutory judgment. In order to challenge the legitimacy of a compensation claim, it must be shown that the other collecting society claims the protection of copyrighted works. It wasn’t enough only indicate that there is another organization working in the sector of ZAiKS’s representation. This principle also extends to the work of foreign artists.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I ACa 134/13

June 25th, 2013, Tomasz Rychlicki

ZAiKS, the Polish Collecting Society, sued an organizer of New Year’s Eve party for copyright infringement, and demanded 3177 PLN compensation – a triple of the amount corresponding to the remuneration calculated by the Society for public performance of works of authors who are associated with ZAiKS. The Society provided an advertisement of the party, an official memo of the police on parties and events that took place in this period of time, and a memo of the inspector who works for ZAIKS of a conversation with the organizer of the ball, as evidence. The District Court in Siedlce and the Appeallate Court in Lublin in its judgment case file I ACa 134/13 dismissed the case. The Court ruled that information about the event itself is not enough to claim damages for copyright infringement.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I A Cz 114/13

June 21st, 2013, Tomasz Rychlicki

The District Court in Białystok in its order of 27 December 2012 case file VII GCo 71/12 dismissed the request of a copyright owner to secure evidence and to order a Polish ISP to disclose information on the personal data (name and address) that was associated with IP addresses of computers that were identified by a requesting party, and from which, via online peer-to-peer applications, unknown persons have made available different audiovisual works.

The Appeallate Court in Białystok in its order of 7 February 2013 case file I A Cz 114/13 dismissed an appeal in this case. The Court noted that under Polish law there is no uniform procedure governing disclosure of personal data for the purposes of civil proceedings. The processing of personal data are governed primarily by the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments and the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments. These regulations guarantee the protection of personal data where their processing (including their disclosure) is always an exception to the rules for their protection. The provisions of Article 80 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments that were introduced to the system of protection of intellectual property rights as a result of the implementation of Directive 2004/48/EC, are solutions distinct and relatively independent of regulation included in the PPD, TLA and PSEM.

The Court ruled that pursuant to Article 80 of the ARNR, an entity with a legitimate interest may request the competent court, among others, to secure evidence (Article 80(1) of the ARNR) and to oblige other person than the one that is infringing copyrights, to provide information that is relevant to future claims, if such a third party provides services used in infringing activities and such actions lead directly or indirectly to profit or other economic benefits (Article 80(1)(iii)(c) of the ARNR).

Article 80. 1.
The court competent to hear the cases of infringement of the author’s economic rights in the locality where the offender conducts its activity or where his economic is located, also prior to filing suit, shall consider, within no more than 3 days of filing, an application of a party with legal interest therein:
1) for securing evidence and securing claims related thereto;
2) for obliging the person who infringed the author’s economic rights to provide information and any documentation specified by the court and being material to the claims referred to in Article 79(1);
3) for obliging a person other than the infringing party to provide information material to the claim defined in Article 79(1) on the origin, distribution networks, volume and price of goods or services which infringe the author’s economic rights, provided that:
a) such person has been confirmed to have goods which breach the author’s economic rights; or
b) such person has been confirmed to benefit from services which breach the author’s economic
rights; or
c) such person has been confirmed to render services used in any acts which the breach author’s
economic rights; or
d) the person specified in letters (a), (b) or (c) indicated a person who participated in production, manufacturing or distribution of goods or rendering of services in breach of the author’s economic rights and the purpose of any of the above actions is to generate, directly or indirectly, profit or any other economic benefit, although it does not include any actions by consumers acting in good faith.
2. If it admits any evidence or considers any applications referred to in paragraph 1, the court ensures that the operator’s business secrets as well as all other secrets protected by law are kept confidential.

In this case, the request of the copyright owner included both legal instruments. In terms of the preservation of evidence, however, was it was worded incorrectly, because as noted previously, the applicant exclusively requested personal data that would allow him for identifying potential defendants in cases of copyright infringement. The Court ruled that these data do not constitute evidence for the purposes of the process. As a result, the Court decided on the obligation to provide relevant information as provided in the Article 80(1)(iii)(c) of the ARNR. The Court agreed with the opinion that the condition for the application of this provisions, as in the each case of temporary measures, is to authenticate the claim i.e. provide prima facie evidence that there is/was copyright infringement, and to describe its legal interest in obtaining the information. First, it is necessary to demonstrate a prima facie evidence of the claim that the applicant holds the copyright to the work. In this regard, “in favor” of the entity seeking legal protection speaks presumption provided in Article 15 of the ARNR according to which it shall be presumed that the producer or publisher is the person whose surname or the name is provided in the goods on which the work is embodied, or made public in any way in connection with the dissemination of the work. This provision implements the rule of presumption of authorship or ownership, as set out in Article 5 of the Directive 2004/48/EC. The applicant, who is a film producer, presented a printout from its website containing information about audiovisual works concerned. The Court assumed that the annotation “rights reserved”, justify the inclusion of the applicant presumption.

The dispute in this case focused on the probable circumstances of unauthorized use (dissemination) of copyrighted works, and about the legal consequences, escalating in electronic communication, the phenomenon of exchange and distribution of files (mostly music or video), using peer 2 peer software. As a rule, it is assumed in the legal doctrine and the Appellate Court agreed with this opinion that, due to the fact that when the file is downloaded from the Internet by a user of a peer-to-peer program it is also simultaneously made available for downloading for others, such action is not part of an allowed personal use referred to in Article 23 of the ARNR.

However, the Court noted that the very presence of files (copyrighted works) in resources of a user of a peer to peer file sharing network cannot automatically lead to a conclusion as to its distribution (making available) for the purposes of copyright law. The Court was aware that there is a technical possibility to block other users’ access to resources on a hard disk, which results in the fact that at the time the file is downloaded via peer-to-peer, it only provides packages – pieces of work, to download for others, which does not allow for its replication. Secondly, in order to provide its resources in peer to peer networks, a user is required the run a proper computer program.

In this case, the Court agreed that all copyright works were made available beyond the allowed personal use (the concept similar to fair use). It has been proven that subscribers of the ISP have acquired copyrighted works (movies) via peer-to-peer networks (using programs such as µTorrent and BitComet), which were produced by the applicant. These movies were actually made available to other users, as it was testified by a witness. As a result, the Court has found the argument of a probable copyright infringement of audiovisual works owned by the applicant, as justified. There was no doubt also for the Court that the ISP is an entity referred to in the provisions of Article 80(1)(iii)(c) of the ARNR. The company provides commercial services that are used for public sharing of unauthorized copyrighted works – the ISP provides access to Internet for a fee, which is a forum of exchange and distribution of audiovisual files within the peer to peer networks. The Court agreed that the applicant had legitimate interest (locus standi) in obtaining relevant information. Such information would allow for identification/personalization of Internet users infringing copyrights, in order to properly initiate civil proceedings against them, and the proper preparation of a lawsuit. The Court noted that the information on the distribution networks, referred to in Article 80(1)(iii) of the ARNR, include, in principle, the data on entities (names and addresses) who unauthorized distribute works protected by copyright law and therefore infringe the copyrights of their owners. Consequently, pursuant to provisions of Article 80(1)(iii) of the ARNR the copyright owner of audiovisual works may require the ISP, to disclose personal data (name and address of residence) of entities who share and distribute audiovisual works protected by copyright in peer to peer networks.

On the basis of Article 8 of Directive 2004/48/EC, providing information that would be used for the protection of intellectual property rights is conditional, and it’s based on the proportionality of the request. The principle of proportionality expresses the idea of making only those activities that are essential and necessary to achieve a particular purpose and those that are appropriate in the circumstances of a case, i.e. they restrict the rights of others as little as it is possible. In this situation, it was necessary for the Court to consider whether in the circumstances of this case, the objective of protecting intellectual property rights justified the abandonment of the protection of personal data of entities who allegedly infringed copyrights. The guidance on the interpretation of these rules are provided in the Directive itself, and more specifically in the provisions its preamble. Namely, in section 14, the Community lawmakers have clearly indicated that the measures include in Article 8 section 1 of Directive need to be applied only in respect of acts carried out on a commercial scale.. The reason for this is certainly the fact that commercial activities are carried out for direct or indirect economic benefit on a large scale and thus significantly affect the property rights of the creators of works. The principle of proportionality provided in Article 8 of Directive 2004/48/EC is also incorporated in Article 80(1)(iii) of the ARNR, which means that the disclosure of information, and the subject of the data, in particular personal data, the Court should decide, taking into account the weight and the scale of the infringement of copyrights, especially from the perspective of the actions of persons violating the law, for profit.

According to the Appeallate Court, the applicant has failed to demonstrate that the request for access to personal data of individuals is in line with the principle discussed. First of all, on the basis of the evidence materials, it could not be assumed that different users have made available audiovisual works for commercial purposes. Secondly, the attached evidence showed that the case was dealing with eight different users who with the help of peer-to-peer networks have shared with only one movie, so the scope of the alleged infringements of copyright applicant, was not significant.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Criminal law, case II K 342/12

January 22nd, 2013, Tomasz Rychlicki

A Polish citizen was charged by the Prosecutor Office for downloading from the Internet of 10 songs in MP3 file format in order to gain material benefits. The Regional Court in Mr.gowo in its judgment of 5 December 2012 case file II K 342/12 sentenced the defendant to imprisonment for six months and a fine, and suspended the execution of this judgment for three years. The Court ruled total penalty of 8 month of imprisonment and a fine, because the defendant was also charged for an illegally obtained copy of the Windows XP OS.

Copyright law, case I ACa 129/12

December 21st, 2012, Tomasz Rychlicki

The Polish Collecting Society representing authors and composers sued an owner of a road restaurant that for nearly five years he played without a proper license agreement music from the television ads that were aired in news channels. The defendant claimed that he only uses the television as any citizen who pays subscription. The District Court in Częstochowa in its judgment of 27 October 2011 case file I C 179/11 decided that that playing music in a restaurant room for an unlimited number of people is deemed as communication to the public under the copyright law.

The Appeallate Court in Katowice in its judgment of 13 April 2012 case file I ACa 129/12 found that the TV set at the restaurant aired mostly news programs and almost all TV programs are interrupted by advertising breaks in which background music is often broadcasted. It was obvious for the Court that the author was properly remunerated for the use of his work in advertising. However, in this case the court bent over considering that the author of the text or the music should have additional consideration for the publication of his work in the advertising. The Court concluded that, although the TV broadcast of interesting programs can affect customers and lead to the financial gain, however, viewing ads is not something attractive for them. As it was further noted, when it comes to public perception of advertising, one may even venture to say that they are pesky and daunting thing to watch the program. The Court held that broadcasting music that was aired in TV ads, does not lead to obtaining material benefits by the owner of the restaurant, thus charging penalty only on such grounds had to be considered as ineligible.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Trade mark law, case Sp. 472/05

December 17th, 2012, Tomasz Rychlicki

Michael Ovadenko requested the Polish Patent Office to invalidate the right of protection for the word trade mark COFFEE HEAVEN R-147034 owned by Coffeeheaven International Plc. Mr Ovadenko argued that this registration infringed his copyrights.

The PPO decided to stay proceedings and ordered the applicant to come up with a petition to the civil court to determine the existence of his rights. Mr Ovadenko filed a suit before the District Court in Warsaw but it was dismissed. The Court held that the designation COFFEE HEAVEN cannot be deemed as a copyrighted work under the Polish Act on Authors Rights and Neighbouring Rights, according to which the object of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). The appeal complaint was also dismissed.

The Adjudicative Board of the Polish Patent Office in its decision of 29 November 2012 case no. Sp. 472/05 dismissed the request. The decision is not final yet. The complaint may be filed before the Voivodeship Administrative Court in Warsaw.

Copyright law, case XIV GC 53/12/9

August 31st, 2012, Tomasz Rychlicki

The District Court in Katowice XIV Wydział Gospodarczy in its judgment of 7 August 2012 case file XIV GC 53/12/9 held that the owner of copyright of images and compositions depicting meat products and various kitchen props is the person who invented and prepared the composition and not the photographer.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Personal interests, case I ACa 689/13

August 1st, 2012, Tomasz Rychlicki

FS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).

The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS. File Solutions filed an appeal.

The Appeallate Court in Warsaw in its judgment of 10 October 2013 case file I ACa 689/13 returned the case to the District Court.

Copyright law, case C-128/11

July 5th, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 3 July 2012 in Case C-128/11 ruled that Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period.

Articles 4(2) and 5(1) of Directive 2009/24 must be interpreted as meaning that, in the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from the copyright holder’s website, that licence having originally been granted by that rightholder to the first acquirer for an unlimited period in return for payment of a fee intended to enable the rightholder to obtain a remuneration corresponding to the economic value of that copy of his work, the second acquirer of the licence, as well as any subsequent acquirer of it, will be able to rely on the exhaustion of the distribution right under Article 4(2) of that directive, and hence be regarded as lawful acquirers of a copy of a computer program within the meaning of Article 5(1) of that directive and benefit from the right of reproduction provided for in that provision.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

A Polish company requested the Ministry of the Interior and Administration (MIA), and Director of the Centre of Information of MIA, to disclose all legal opinions prepared by the Polish Information Processing Society that concerned IT systems created by the Ministry. The Director provided all the requested documents, however the Ministry only asked the Company to clarify the request in the letter sent on October 2009. The Company filed a complaint for failure to act, claiming administrative inaction in its case. The Ministry also argued that the requested information cannot be disclosed because such expert opinions are copyrighted materials, and as such, are not deemed as public information.

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed a cassation complaint.

The Supreme Administrative Court in its judgment of 7 March 2012 case file I OSK 2265/11 dismissed it. The SAC held that if the Minister found that it had the requested information, while it also concluded that there are obstacles to the disclose because of the circumstances set out in Article 5 of the API, or other provisions of specific laws, it was obliged to initiate ex officio proceedings on the refusal to disclose information. The refusal should be issued as an administrative decision only. The lack of such a decision was deemed as administrative inaction, subject to a complaint. The letter sent by the Minister on October 2009 was clearly not an administrative decision. The SAC reminded that the administrative decision should obligatory contain: the name of public authority, date, identity of the party or parties, the legal basis on which the decision was issued, the conclusion and findings, factual and legal grounds, instruction, whether and how to file an appeal against the decision, the signature with the name, surname and position of the person authorized to issue a given decision. Although the letter was signed and affixed with the seal by the Deputy Director of Administration and Finance Office of the MIA, is was not mentioned that the Director acted under the authority of the Ministry. The letter did not contain a ruling on the request of the Company, but on the contrary – the Director explicitly stated that the request was not recognized in accordance with that Act on access to public information. The Letter had no form of a decision, it did not include the instruction, whether and how to file an appeal against it. The Court decided that this letter was purely information message sent on paper. The Polish legislature did not formulate any legal definition of “access to public information”, or the very concept of public information, both in the Polish act on access to public information or in any other legal act. However, Article 1 of the API ab initio provides that each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act. According to legal commentators, a public matter is the activity of both public authorities, economic and professional self-government bodies that exercise tasks of official authority and the management of public property. A specific individual case of a person, especially of a private nature, is not deemed as public matters. The access to administrative files falls Within the catalog of public information. Public information is therefore the content of any document relating to public authority. These range from documents produced by government bodies, as well as those used in the execution of the tasks provided for by law, even if they do not come directly from the authorities. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 30 October 2002 case file II SA 1956/02, the Voivodeship Administrative Court in Opole in its judgment of 17 January 2008 case file II SAB/Op 20/07, the Voivodeship Administrative Court in Warsaw in its judgmet of 16 July 2008 case file II SA/Wa 721/08, the Voivodeship Administrative Court in Warsaw in its judgmet of 26 June 2008 case file II SA/Wa 111/08. The criterion for determining the disclosure and availability of the documents under the API is not their authorship, but the opinion that they are used to carry out public duties, and were prepared at the request of public authorities, when at the same time, their content and does not violate the privacy of an individual or trade secrets of business. It is not about the disposal of copyright, but about access to the content of the document that was created on behalf of the public authority to carry out public duties. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11, by the Supreme Administrative Court in its judgment of 7 December 2010 case file I OSK 1774/10, by the Supreme Administrative Court in its judgment of 18 September 2008 case file I OSK 315/08, by the Supreme Administrative Court in its judgment of 9 February 2007 case file I OSK 517/06. Not all opinions or expertise, that were created by a public authority or on behalf of public authorities, are public information. The classification of legal opinion in documents that are available under the API is determined by the purpose for which it was prepared. A legal opinion prepared for the public authority on the merits of initiating future proceedings in a particular civil case does not constitute public information for the purposes of Article 1 of the API. It was confirmed by the Supreme Administrative Court in its judgment of 16 June 2009 case file I OSK 89/09. An expertise that specifically relate to a given legislative proposal for which the legislative process continues, are deemed as public information. These documents relate to the facts, of such, is the legislative proposal submitted to the competent authority in the legislative procedure. It was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. If a disclosure of public information threatens the common or individual interests, there is the possibility to restrict the access to such information by refusing its disclousure by an administrative decision that should be based on the provisions of Article 16 of the API. The expertise prepared by the Polish Information Processing Society for the Ministry, associated with the formation by that authority of systems, and the preparation of examinations for persons applying for a certificate of qualification for the controllers and communication systems, satisfy the conditions of public information, because they concern the implementation of tasks by the public authority. If the the expertise concerned computerization and informatization of the public sphere and involved the expenditure of public funds, therefore it is public information, because it refers to the public affairs, which is the issue of computer software/programs in the implementation of public tasks, and how they are used and implemented, the implementation and impact of these tasks and information on public property, including property of the State Treasury.

There was also a specific issue of the expropriation of copyright for public purpose. Article 1 of the Polish Act on Authors Rights and Neighbouring Rights provides that the subject of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). Opinions and expertise made by qualified persons or entities meet the statutory definition. According to Article 4 of the ARNR, the copyright should not apply to legislative acts and their official drafts, official documents, materials, logos and symbols. Expertises commissioned by the Ministry, are official documents within the meaning of the Article 4(2) of the ARNR. They are used as a servant in decision-making process of the executive authority and are not the subject of copyright. The Polish Supreme Court and the Supreme Administrative Court agree that the official documents are materials that come from the office or other state institution or concerned official matters, or was the result of application of the official proceedings. As it was decided by the Supreme Court in its judgment of 26 September 2001 case file IV CKN 458/00, and by the Supreme Administrative Court in its judgment of 19 February 1997 case file I SA/Kr 1062/96. The effectiveness of social control and supervision over the information used on completion of assigned tasks of public authority correspond with such understanding of the relationship between the provisions of Article 1 of the API and Article of the ARNR. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. Hence, the definition of an official document, provided in Article 6(2) of the API does not provide a basis for restricting access to public information, defined in the Article 1(1) of the API, including the catalog of examples contained in Article 6(1) of the API.

Copyright law, case C-406/10

May 5th, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 2 May 2012 Case C-406/10 ruled that Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

The CoJ noted that Article 5(3) of Directive 91/250/EEC must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

The Court also ruled that Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if – this being a matter for the national court to ascertain – that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright.

Tax law, case II FSK 1548/10

April 2nd, 2012, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 9 March 2012 case file II FSK 1548/10 ruled that an agreement concluded between the advertiser company and the owners of websites is deemed as unnamed contracts, similar to tenancy contracts. The inclusion to the application of a third party code that allows for the inclusion of advertising on the website is in fact a violation of the integrity of the copyrighted work – the website. It is therefore the realm of personal (rather than property) rights of the copyright holders. Although these are inalienable rights, but according to the prior case-law, it is permitted to waive of the exercise of these rights by the creator to third parties, including entrepreneurs as it was decided by the Appellate Court in Warszawa in its judgment of 14 May 2007case file ACa 668/06 published in OSA 2008/12/39. The author or copyright owner can effectively commit to a specific person not to execute of personal rights, or even to allow for its exercise on his or her behalf, because then it comes to the exercise, and not to the renouncement of moral (personal) rights.

Copyright law, case III CSK 30/11

March 14th, 2012, Tomasz Rychlicki

Helena Miazek is a well known Polish folk artist and creator of paper cuts that are based on the long tradition of Łowicz region. Wawel S.A. is a Polish manufacturer of sweets. The company used different graphics with folk elements on its products. Helena Miazek and Stowarzyszenie Twórców Ludowych in Lublin (The Folk Artists Association – a collecting society) sued Wawel for copyright infringement. The suit included a claim in which the Association demanded Wawel to provide information concerning the use of paper cuts on packaging products. Wawel argued that it has commissioned other artists to create these graphics. The District and the Appeallate Court dismissed the suit as unfounded. Both courts deemed the society as the entrepreneur which was obliged to prove that a particular copyrighted work was used without permission of the owner. The Association and Helena Miazek filed a cassation complaint.

The Supreme Court in its judgment of 17 October 2011 case file III CSK 30/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court had to decide on the nature of information claim afforded in Article 105(2) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collection societys claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

Earlier Supreme Court case law is not too rich when it comes to this issue. The Supreme Court in its judgment of 8 December 2000 case file I CKN 971/98 published in OSNC 2001/6/97, pointed out that the provision included in Article 105(2) of the ARNR is a legal norm of substantive law, and the right of collecting societies to protect authors rights and neighbouring rights, exempts it from the obligation to provide the authority to represent, both in the trial for payment, or in any trial for disclosure of information and documents. The Supreme Court in its order of 17 September 2009 case file III CZP 57/09 held that the proceedings for disclosure of information and documentation is a new legal tool. The Court ruled that in the doctrine of civil law, it is reasonably assumed that if the right is strictly defined and concretized in terms of its content and subject, and when this right is merged with the obligation of another entity, then such a legal norm is substantive in its nature and in case of evasion by the bounded entity from the performance of an obligation imposed on it, the right takes the form of a claim which may be enforced through the courts. For instance, the claim to disclosure of information has the auxiliary nature under the contractual relationship between the collecting society and the producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus who are obliged to pay remuneration fees, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms. These creators and performers are represented in such cases only by the collection society. Such informational claim, which addressed to the same bounded entities, was created to ensure the proper execution of the basic right to equitable remuneration. Information and documents obtained during the trail are the basis for determining the amount of the fees enjoyed by collecting society, regardless of whether the society intends to pursue these fees in court. The Supreme Court in the case of Helena Miazek and and Stowarzyszenie Twórców Ludowych in Lublin decided that the informational claim also applies to information concerning the use of certain works by a third party.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Unfair commercial practices, case VI ACa 1179/11

February 20th, 2012, Tomasz Rychlicki

The President of the Office of Competition and Consumer Protection in its decision of 29 August 2008 case DOK – 6/2008 ruled that two Polish collecting societies, the Association of Writers and Composers (Stowarzyszenie Autorów – ZAiKS) and the Polish Filmmakers Association (Stowarzyszenie Filmowców Polskich – SFP), were involved in actions deemed as infringement of competition on the relevant market. This decision concerned the agreement on uniform rates of copyright remuneration that were collected from commercial users for the sale of audiovisual works on media intended for private use. The request to initiate antimonopoly proceedings was filed by the Polish Press Publishers Association (Izba Wydawców Prasy – IWP) based on the provisions of the Polish Act of 16 February 2007 on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów), published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with subsequent amendments.

IWP claimed that ZAiKS and SFP are competing entities because they are active on management and collecting in the same fields of exploitation of copyrighted works, and authors, creators and copyright owners can freely choose the collecting society they want to be represented by.

The President of the OCCP found that ZAiKS and SFP decided that the minimum remuneration rates for one copy of the media will be for a movie on DVD – 2 PLN, for a movie on VCD and VHS- 1,1 PLN, for a cartoon movie on DVD – 1.6 PLN, and for a cartoon movie on VCDs and VHS – 0,8 PLN. Minimum rates for a copy of audiovisual work on the media that are sold together with other products, including, in particular newspapers and magazines were set on an even lower level. For instance for a DVD that was put on the market before 1 July 2004 – 1 PLN, and from 1 July 2004, 0.60 PLN, There were also introduced discounts from 5% to 40% depending on the number of copies (from 100.000 to above 700.000 copies).

Members of IWP, who are press publishers, are also contractors of ZAiKS and SFP. The Press publishers add copies of DVD movies to their newspapers and magazines, as the so-called inserts. They are required under the provisions of Polish copyright law to pay appropriate remuneration for the reproduction of the audiovisual work on the copy for individual use. The remuneration fee is paid by the press publishers only through the collecting society. IWP argued that the remuneration of the authors for use of audiovisual works should be individualized, and the conditions of agreement to use the work should be negotiated. The collecting societies should negotiate different rates for different movies. Such actions would prove the real concern for the interests of every member of each collecting society, because the authors of a better movie should earn more. The rates covered by the agreement between ZAiKS and SFP did not include possible revenues from the use of audiovisual works, nor the specifics of this use. Thus, according to the IWP, the agreement of ZAiKS and SFP on the application of uniform rates, deprived commercial users the possibility to negotiatie the rates, and significantly restricted competition.

ZAikS and SFP filed complaints against the decision of the President of the OCCP. The Polish Court of Competition and Consumer Protection in its judgment of 8 July 2011 case file XVII AmA 23/09 dismissed them. The Appeallate Court in Warsaw in its judgment case file VI ACa 1179/11 dismissed the appeal.

Copyright law, case IV CSK 133/11

January 18th, 2012, Tomasz Rychlicki

The Supreme Court in its judgment of 21 October 2011 case file IV CSK 133/11 held that the respective remuneration for the culpable infringement as defined in Article 79(1) pt. 3 letter b of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments, does not depend on proof of actual damage that was suffered by the rightholder.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Consumer protection, case XVII Amc 113/11

December 29th, 2011, Tomasz Rychlicki

The provision of the Rules of the Municipal Public Library in Słupsk stated that the Library may allow for reproductions or digital reproductions of one publishing volume sheet, which is approx. 22 pages of A4 format, of any documents protected by copyright law that are in the collection of the Library. However, such rules are contrary to the provisions of Article 23 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

Section 3
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

The Polish Court of Competition and Consumer Protection in its judgment of 9 December 2011 case file XVII AmC 113/11 held that such rule is prohibited and deemed as a wrongful contractual provision, as defined in the Article 385¹ § 1 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

Article 385¹. § 1. Provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). This shall not relate to the provisions which specify basic performances of the parties, including the price and remuneration if determined explicitly.
§ 2. Where the provision referred to in paragraph 1 is not binding upon the consumer, the parties shall be bound by the remaining provisions of the contract.
§ 3. The provisions not agreed individually shall be such provisions of the contract over which the consumer had no actual influence. It shall concern, in particular, the provisions of the contract taken over from the model form of contract offered to a consumer by a contracting party.
§ 4. The burden of evidence to prove that the provision has been agreed individually shall be borne by the party who claims so.

The Court held that the Library cannot decide on limits of copying of any of the library collections. Copying books without limitation of the maximum number of pages is legally permissible. The provisions of the ARNR do not indicate any limits. Such a judgment come as no surprise, because every person who is in possession of any reprographic devices and conducts economic activities within the scope of reproduction of works for the personal use of third parties, is according to the provisons of article 20¹ of the ARNR obliged to pay, through a Collection Society, fees at up to 3% of proceeds generated from such activities, to authors and publishers, unless the reproduction is done on the basis of a contract signed with a rightholder. Such fees are paid to authors and publishers in equal parts.

Copyright law, case III CZP 61/11

November 19th, 2011, Tomasz Rychlicki

The Polish Supreme Court in its order of 26 October 2011 case file III CZP 61/11 held that manufacturers and importers of photocopiers, scanners and other similar reprographic equipment, that allow for the production of copies of the whole or part of the published copyrighted work, are obliged to provide to the competent organization for collective copyright management (collecting society), information and documents, that relate to all contracts for the sale of these devices.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Criminal law, case II Ka 269/11

November 14th, 2011, Tomasz Rychlicki

Maria S. was charged by the Prosecutor based on the provisions of Article 278 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

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.

Such situation happened because, during the investigation, the Police found on her laptop two shareware programs Win ZIP 8.1 and Win Rar 3.0. This software was valued 113,89 PLN each, and the period of time to buy a license already expired. Maria S. explained that she wasn’t aware that she had illegal software installed. She argued that both programs were installed by computer service technicians during the repair of her laptop. This statement was confirmed by a witness expert testimony. The expert said that both programs were installed at the same time, when the operating system was also configured. The expert noted that this is typical practice of computer services personnel who install software needed to install other programs, and do not remove it after the completion of repairing. At the time of installation of both programs, they were legal.

The Regional Court in Biłgoraj acquitted Maria S. of all charges. The Court found that she did not act in order to gain material benefits and she had no full awareness that her behavior lead to the obtainment of computer programs without the consent of the person entitled. The Prosecutor appealed. He argued that Maria S. was guilty because she wasn’t careful enough, and she did not buy both licenses immediately.

The District Court in Zamość in its judgment case file II Ka 269/11 upheld the verdict. The Court ruled that issues of normal or increased diligence or care that should appear in case of expired trial or shareware software, do not belong to the category of the constituent elements of the alleged offense.

Copyright law, case I OSK 678/11

November 3rd, 2011, Tomasz Rychlicki

This is the continuation of the story described in “Copyright law, case II SAB/Łd 53/10“. The Supreme Administrative Court in its judgment of 21 July 2011 case file I OSK 678/11 ruled that copyrighted works in the form of test questions, if they are used for the state exam, become official documents, and the unused questions, which are the so-called “pool of questions” are deemed as documentary material for the purposes of Article 4(2) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

Art. 4. The following shall not be protected by copyright:
(1) normative texts and the drafts thereof,
(2) official documents, documentary material, devices and symbols,
(3) descriptions of patents and other protection titles,
(4) mere news items.

The court emphasized that different types of materials that are in the possession of the public bodies are not public information, because their content (intellectual property content) is not used or was not used in dealing with any of the public cases, and thus such material did not acquire the characteristics of official documents. Therefore, the argument raised in the cassation complaint that a particular set of questions or a single question from the pool of questions, that was not used in the state exam should be disclosed, was completely groundless.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case VI ACa 461/11

November 3rd, 2011, Tomasz Rychlicki

Maryla Rodowicz is a well-known singer in Poland. She composed and recorded a song entitled “Marusia” about a Russian soldier-girl that was one of heroines from the book “Czterej pancerni i pies” written by Janusz Przymanowski. Mrs Rodowicz also created a video clip for this song. You can easily search and find it on YouTube. She used 3 minutes of the TV series entitled “Czterej pancerni i pies” where Marusia is portrayed by Polish actress Pola Raksa. Mrs Rodowicz paid 9.000 PLN of licensee fee to the producer Telewizja Polska S.A. A widow of the writer filed a copyright infringement suit claiming that this ridiculous video violated his personal and economic copyrights.

The Appellate Court in Warsaw in its judgment of 27 October 2011 case file VI ACa 461/11 had to answer the most important question, i.e. what was the nature of the video clip. Expert witnesses that were appointed by the agreement of both parties stated that the video is not an inspired work, because it directly incorporated some parts of the TV series. It wasn’t also a derivative work since it did not creatively transform the original work. Experts said that this was a work with borrowings, that copied fragments of someone else’s work where the right of quotation was exceeded. However, such use requires the consent of the copyright holder. The problem was that the producer was not able to provide the agreements from the time when the series was produced. The Court held, that in this case copyrights to the script are in the hands of creators, including Mr Przymanowski and his heirs. The Court ordered Maryla Rodowicz to pay 37.000 PLN of compensation.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case P 18/09

October 14th, 2011, Tomasz Rychlicki

The Constitutional Tribunal of the Republic of Poland in its judgment of 11 October 2011 case file P 18/09 held that Collecting Societies acting on behalf of authors, performers, producers of phonograms and videograms and publishers, may demand from manufacturers of copiers and recorders all information and documents necessary for calculation of the amount of fees levied on them. The producers and importers of tape recorders, video recorders and other similar apparatus are obliged to pay these fees according to Article 20(1) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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 subsequent amendments.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.
ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The Association of Copyright Collective Administration for Authors of Scientific and Technical Works requested one of the Polish companies to provide information about copiers imported and sold in Poland. Every Collecting Society has the right to request such information based on the provisions of Article 105 of the ARNR.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collective administration organizations claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

This request created legal uncertainty and the case ended before the courts. The Appellate Court in Wrocław had doubts whether such request violates trade secrets of a company, and there are any guarantees to protect against fraud. The Court noted that the protection of trade secrets is guaranteed by the freedom of economic activity. That freedom may be restricted only for reasons of important public interest. Meanwhile, the interest of collecting societies is not the public interest, but the sum of the partial interests of private authors, creators and publishers.

The Constitutional Tribunal ruled that fees charged by Collecting Societies are collected in order to protect the rights of creators, performers, producers of phonograms and videograms and publishers. This means that the restriction of freedom of economic activity was in accordance to the condition expressed in Article 31(3) of the Polish Constitution.

Article 31
Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

The Constitutional Tribunal held that in order to protect the rights of others, the legislature intervenes in the economic relations, that are based on the model of market economy in a democratic state, whose pillars are freedom of economic activity and private property. The Constitutional Tribunal held that Article 105(2) of the ARNR limits the freedom of economic activity, but it does not affect the principle of proportionality. The limitation of the freedom of economic activity serves to protect the interests and constitutional values such as the rights of creators, social conditions and economic foundations of a market economy. The limitations of economic activity are necessary to protect these values, and to avoid state interference in the sphere of access to modern reprographic equipment.

See also “Polish regulations on copyright” and “Polish case law on copyright“.