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Archive for: copyright infringement

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, 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 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 I ACa 787/11

December 1st, 2010, Tomasz Rychlicki

Stan Borys is a Polish singer and author of the lyrics to the song “Chmurami zatańczy sen”, which was composed in 1974. A longer excerpt from the chorus “Ciemno juz zgasły wszstkie światła, ciemno już, noc nadchodzi głucha” has been used by Ryszard Andrzejwski, a Polish raper called PEJA as a sample in his song “Głucha noc” which was recorded in 2001 and released by his publisher T1-Teraz sp. z o.o. on two albums in 2001 and 2002. These albums were distributed by EMI Music Poland. The sampled part was transformed by changing the voice octave and by increasing the music tempo. The song became a hit that was aired in radio and television stations.

CT Creative Team S.A. sells multimedia content to mobile phones based on SMS and WAP technology using Premium Rate numbers. On 26 August 2003 the company entered a license agreement with T1-Teraz for distribiution of short fragments of songs recorded by PEJA. This also included 30 seconds of “Głucha noc”. These music pieces were uploaded to CT Creative MEdia server. CT was obliged to pay 0,15 PLN for each downloaded fragment, the payment followed within 14 days after the end of each calendar quarter. CT was also required to provide an additional statement containing the information on songs/fragments used together with the original titles, numbers of downloads and numbers of fees charged. A year later the two companies signed an similar agreement with a fee 0.,5 PLN per downloaded song. In the period from September 2003 to October 2005, this song has been downloaded 859 times as a phone ringtone and CT earned 3465 PLN.

Stan Borys found out about this song in 2004. To his surprise, he was informed at the press conference, held together with PEJA. Resentful of this situation, he explained that he did not consent to the use of his song by PEJA. His attorney requested the CT Creative to stop distribution of the song and the ring tone was withdrawn. Stan Borys sued CT, T1-Teraz, and Ryszard Andrzejewski.

The District Court in Warsaw in its judgment of 14 September 2010 case file I C 626/06 held most of the claims were justified. The Court ruled that the fragment used by PEJA by its transformation constitutes a derived work made from the work of Stan Borys. The manner of disposal of the derived work and the use thereof should be subject to the consent of the creator of the original work (the so-called dependent copyright), except where the economic rights in the original work have expired. Stan Borys is entitled to protection of his moral and economic rights. The court disagreed with the argument that the license agreement allows for the free dissemination of the work as specified in the agreement. The obligation to indicate the creator of the original song is saddled with both the creator of derived work (if one does not do that he or she risks the charges of plagiarism) and that one who distributes a derived work. The Court cited the judgment of the Appellate Court in Warsaw of 14 March 2006 case file VI ACa 1012/05. See “Copyright law, case VI ACa 1012/05“.

The court found that the lack of consent on the creation of a sample and dissemination of the work and the lack of designation of the author of the original work is the evidence of unlawful infringement of copyright and the rights to artistic performance by the CT Creative. In the assessment of the Court, the infringement was culpable in the form of at least negligence because it was associated with lack of diligence in examining whether distributed ringtones are not other people’s songs/works and such an obligation results from the professional nature of CT Creative’s business. However, intentional guilt can be attributed to CT Creative from 12 September 2005 when the company received a corresponding letter from Stan Bory’s attorney.

The court ruled that as a result of CT actions Stan Borys was deprived of possibility to exercise his rights of supervision over the use of the work, authorship rights and rights to cause the work to appear under his name and surname. The court also took into account the form in which the infringement has occurred. Stan Borys claimed that this violation was for him the more severe because the fragment of “Chmurami zatańczy sen” has been distorted in a caricature way and it was used in hip hop song, which included obscene words. Stan Borys did not and does not want to have nothing in common with this genre of music. The Court agreed with the argument that creating this sample in this given form depreciated previous works of Stan Borys. The court held that there is a causal link between the activities of CT Creative and the harm and damage caused to Stan Borys. This applied both to his personal rights (intangible) and economic rights to the copyrighted work because he did not receive any remuneration for the distribution of. The court ordered the cessation of the use and distribution of the work and ordered to pay 15000 PLN for the infringement of personal rights and 10000 PLN for the infringement of economic rights and rights in performance (three times of the equitable remuneration, which at the time of the enforcement would be payable to the entitled person for granting the permission for the use of the work), and to publish an apology.

CT Creative appealed. The Appeallate Court in Warsaw in its judgment case file I ACa 787/11 reversed the sum of compensation and send the case back for reconsideration.

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

Copyright law, case IV CSK 359/09

September 17th, 2010, Tomasz Rychlicki

The Polish company KREA sp. z o.o. prepared a label design for yoghurt packaging that was commissioned by Wojciech Jurkiewicz. The Company contacted a freelance graphic deisgner to create word-figurative trade mark, which was to be placed on this packaging. KREA acquired all copyrights. Wojciech Jurkiewicz filed for trade mark registration but the PPO refused to grant the right of protection. Mr Jurkiewicz was also sued by KREA and the District Court ordered the defendant to cease the copyright infringement of economic rights owned by KREA to the word-figurative trade mark JOGI by deisisting from using of the sign in any form in the course of economic activity and ordered Mr Jurkiewicz to pay 51.000 PLN. The Appelate Court changed the judgment only by reducing the amount awarded to 15.000 PLN.

Z-252222

KREA also filed a suit against OBORY sp. z o.o., claiming copyright infringement of its word trade mark JOGI. The Company argued that the binding force of the judgment against Mr Jurkiewicz extends to a conclusion that JOGI word is deemed as a copyrightable work.

R-217384

The Supreme Court in its judgment of 22 June 2010 case file IV CSK 359/09 held that only the dictum is the binding element of a judgment, not its motives, therefore, the previous judgment has no expanded legitimacy. It was not a reasonable argument that the earlier cited judgment in case against Wojciech Jurczyński would always be the official confirmation of the plaintiff’s copyright to a word sign. The idea for the word “JOGI” (which existed previously in the public domain) as a designation for drinking yoghurt, is nothing creative or original. The Court noted that the opinion that copyright law does not use the novelty condition in the objective sense, but in subjective terms, is dominating. The condition of work’s “originality” is satisfied if there subjectively exists a new product of the intellect. One may say about the self-creativity only if the created work was not previously known in the same form, and thus it manifests itself in an objectively tangible result of creativity. The approach presented by KREA, which lies almost on the presumption of fact that every product of human intellectual is a protected copyrightable work, without demonstrating of its creative elements, has no support in the ARNR and is too far reaching. In a wider perspective, such conclusion would be the risk of depreciation of the concept of creativity in general. In principle, a single word, not only these taken from everyday language, but also the unknown words or neologisms, do not have the characteristics of creativity. Only one-word titles, or slogans, may be exemption to the aforemtnioned rule when applied to specific situations, when they are characterized by a startling clarity and brilliance, make poetic of the whole work, are the “key” to understanding of such work. The Polish legal doctrine and case law have long since stopped using the term “pure art” and promoting the traditional cultural role, which the right had to serve. The concept of “copyright work” is recognized widely, with persistent tendency to mitigate the criteria governing the granting of copyright protection, such as creativity, originality and individuality. The evidence of such actions is presented in the protection of the products of which contain a small contribution to creative work, and characterized by even a small degree of originality and individuality. In this context, the concept of “boundary categories of works” is used and also – in principle – the possibility of granting copyright protection to small products of human activity that are designed for purely utilitarian and practical use, is not denied. The ARNR protects works created not only for artistic purposes and does not refuse the protection for works created solely for commercial (industrial, merchandising) purposes, but only in so far as the work has such characteristics that are required for any other copyrightable work. The utilitarian purpose of copyrightable works, created solely for the intended use in a certain way, is typical for the objects that are subject to industrial property rights, in particular industrial designs and trade marks In the case of the latter it most often applies to word-figurative trade marks. In Polish law it is permissible to accumulate of certain intangible property/econimic rights, including trademarks being also copyrightable works and industrial designs/copyrightable works.

In the opinion of the Supreme Court, the mere use of a word as a trade mark should not affect the possibility of its recognition as a copyrightable work, since the existence of such work cannot depend on its specific purpose. The way of using a given work does not decide on the statusu of its copyrightability. The word “JOGI” does not show originality, which could allow for an exception to the generally accepted principle that single words do not have creative characteristics. It has no autonomous characteristics of the copyrightable work, and it isn’t a copyrightable work because of someone “invented” a particular way of its use as a trade mark, or designation of a particular type of goods originating from a particular undertaking.

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

Copyright law, case X GC 74/08

August 23rd, 2010, Tomasz Rychlicki

Hasbro company filed copyright infringement suit against INTERKOBO Sp. z o.o., a Polish company that imports and distributes games, toys and sports articles, mainly from China, Hong-Kong and Taiwan. Hasbro claimed that Interkobo by acts of importation, advertising and selling of games such as “Colour Twist”, “Who is it?”, “Worldbusiness” infringes on Hasbro’s copyrights.

The District Court in Łódź in its judgment of 8 December 2009 case file X GC 74/08 based its findings on expert witness with regard to formal analysis of works in question as to whether games imported by Interkobo infringes on Hasbro’s rights. The Court agreed with the expert that the abstractly conceived rules of the game are ideas that cannot be copyrighted. The authorship of a game understood as a set of abstract rules by which the game is to take place cannot be granted. The court did not excluded the protection of such abstract rules of the game based on the general principles of the civil law, but acknowledged that it remains outside the subject matter of the case and did not provide further arguments in this regard.

The Court also took into account that Hasbro is a foreign company and according to provisions of Article 2(6) and Article 5(2) of the Berne Convention, the protection of its rights should be governed exclusively by the laws of the country where protection is claimed, i.e. 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.

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

Trade mark law, case II GSK 746/09

August 10th, 2010, Tomasz Rychlicki

This is the continuation of a story decribed in “Trade mark law, case VI SA/Wa 2284/08” that concerned HERITAGE FILMS trade mark. The Supreme Administrative Court in its judgment of 10 August 2010 case file II GSK 746/09 dismissed the cassation complaint brought by Zygmunt Piotrowski. The SAC held inter alia that the provisions of the TMA or the IPL do not provide in the course of the litigation proceedings lead by the Polish Patent Office, for the possibility to control the legality of the administrative proceedings that concerned the registration of a given trade mark. The legality of a decision granting the right of protection should be challenged in different proceedings.

Heritage

The Court noted that Mr Piotrowski confused the concepts of “invalidation of the registration right” or “invalidation of right of protection for a trade mark” with the annulment of the decision on the granting of the right. There are different grounds for such decisions and other procedures on their issuance, but in case of the breach of the provisions listed in Article 29 of the Trade Marks Act, those conditions may overlap, and only in this case they might be raised in the opposition proceedings. Consequently, the invaliditon of the protection right, although identical in its consequences, cannot be identified with the institution of the annulment of the decision on the granting of the right of protection.

Copyright law, case I ACa 206/10

June 26th, 2010, Tomasz Rychlicki

Passa Company sued its competitor – Informator Handlowy Publishing House for the copyright infringement of personal and economic rights to a few ads that were published by Passa. Passa argued that Informator Handlowy copied, altered and distributed these advertising in its magazine, including photographs that were used by Passa.

Informator Handlowy argued that it has received all the published materials from its advertisers and they should be the defendants in this case. IH also argued that the advertisements at issue are not protected by copyright law, since they do not have the characteristics of the copyrightable work. They rely solely on the computer alteration, without the creative factor, and photographs (walls, roofs and chimneys) do not have the nature of the copyrightable work because they do not contain any creative element.

The District Court in Lublin ruled that photographs that were used in ads cannot be protected by provisions 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. However, the Court also held that these advertisements are subject to copyright protections as provided in article 1 of the ARNR because they meet the criterion of individuality (creativity of the plaintiff) and originality (they presented a visible margin of creative freedom, own personal choice of treatment of the subject). The Court held that the publication of advertisements without consent of Passa infringed its copyright. The Court also ruled that there were no conditions for the adoption of the liability of the defendant under the provisions of article 17 and 79 of the ARNR.

The Appellate Court in Lublin in its judgment case file I ACa 206/10 confirmed the findings of the court of first instance as to the copyright infringement of advertisings, but also pointed out that the District Court misinterpreted the law. The Court held that in a situation where the use of the work is illegal (there is no agreement to use copyrighted work or the provisions of fair use/allowed use cannot be applied), i.e. such use is made without the consent of the creator, his claims are set out in article 79 of the ARNR, including the right to equitable remuneration. A defendant in such case can be anyone who infringes on creator’s right. The Court emphasized that copyright protection vest in the owner against anyone who violates those rights. It did not matter that the advertisements were published on behalf of Informator Handlowy’s clients and that the infringer was in good faith or it has exercised due care. See also “Copyright law, case I ACa 2/96“

The Appellate Court found that the Court of First instance was wrong to rely on article. 42(2) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), Journal of Laws (Dziennik Ustaw) No. 5, item 24, with later amendmets.

The publisher and the editor is not responsible for the content of announcements and advertisings published in accordance with article 36.

That provision concerns the responsibility for the content and form of advertising, or infringement of the rights associated with breaking the rules of social coexistence, or any legal prohibition of advertising, such as alcohol, cigarettes, or the Act on Combating Unfair Competition. This provision does not cover the issue of infringement of copyright. See also “Press law, case V CK 675/03“.

The Appellate Court refered the case back for retrial because of the scope of procedural and material errors, including rejection of a motion for admission of an expert as to the estimate of the amount of compensation, the lack of assessment of all material.

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

Copyright law, case P 31/07

October 28th, 2009, Tomasz Rychlicki

A person acting without the authorization of the rightholder, sold in order to gain material benefits, a copy of a design of single-family house XENIA. The design was owned by the Project Studio Archipelag. The District Prosecutor’s Office qualified his actions as a criminal offense under article 117(1) and article 115(3) 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.

Art. 115. 1. Any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another shall be liable to a term of imprisonment of up to 3 years, restriction of freedom or a fine.
2. Any person who, without mentioning the creator’s name or pseudonym, discloses the work of another either in its original or in a derived form, or a performance, or who publicly distorts a work, a performance, a phonogram or videogram or a broadcast, shall be liable to the same penalty.
3. Any person who, with a view to making a material profit in a manner other than that specified in paragraph 1 or 2, infringes the rights of the author or neighboring rights within the meaning of Articles 16, 17, 18, 19 paragraph 1, art. 191, 86, 94 paragraph 4 or article 97 or without performing his duties as mentioned in article 193 paragraph 2, 20 paragraphs 1-4, 40 paragraph 1 or paragraph 2, shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.
(…)
Art. 117. 1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

The Regional Court in Warsaw filed a question of law to the Constitutional Tribunal. The Court asked whether article 115(3) of the ARNR satisfy the requirement of preciseness, because it does not precisely define what behaviors are penalized by this provision. The court noted that the construction of the aforementioned provision is deemed by the Polish doctrine of law as defective, because the phrase “in a manner other than (…), infringes the rights” is devoid of characteristic of criminal offenses, which in turn makes it impossible to identify what behaviors shall be punished. This is contrary to a fundamental principle of criminal law – nullum crimen sine lege, which is also included in the article 42(1) of the 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 Court also pointed out that the scope of criminal penalties set by provision of article 115(3) of the ARNR are in fact too broad and unduly limits the rights and freedoms. Furthermore, this provision is particularly generous to authors, performers, producers of phonograms and videograms and broadcasting organizations. Namely, any breach of their rights, creates criminal liability.

The Constitutional Tribunal in a decision of 21 October 2009, case file P 31/07, discontinued the proceedings because of the inadmissibility to issue a judgment. The decisions was based on the fact that the request contained defects in the form.

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

Copyright law, case I C 238/06

June 15th, 2009, Magdalena Gad

Such a conclusion stems from the sentence of the District Court in Tarnow of 20 December 2007 in re: Bochnia Independence Half-Marathon, case file I C 238/06.

Once upon a time… in the town of Bochnia, the so-called annual “Bochnia Independence Half-Marathon” used to take place. The event had been organized by the town and county authorities, in collaboration with the originator, one Zenon G., ever since year 2001. As the name indicates – the event’s primarily purpose was to celebrate the regained independence of the town of Bochnia and attracted a substantial amount of participants each and every year. The cooperation between the county and the “founding father” lasted for 4 happy years until it was broken off abruptly in 2005, due to a dispute that sparked over money. The authorities of Bochnia decided to organize the marathon on their own, without either the help or the permission of the originator. This understandably got the latter’s hackles up. The case ended up in court.

The route of the half-marathon IS an artistic work… The originator accused the county and the mayor of infringing his copyrights, claiming that both the initiative as well as the sole idea to organize the run, along with the manner in which the whole event was planned and arranged, met the prerequisites of an artistic work within the meaning of the polish copyright law, including the requirements of “creativity” and “individual character”.

The Court before which the case appeared, agreed with the Claimant’s theory and held that whenever talking about an artistic work within the meaning of Article 1 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 later amendments, “the entirety of features, in their original juxtaposition” should be taken into consideration. The Court emphasized that the fact that the commonly available elements had been used to create the work, does not necessarily mean that such work does not fall within the definition of an artistic work under the Article 1 of the AARNR. Although, as a matter of rule, such individual elements, in and of themselves, are never protected under the polish law, any and all compilations thereof do get protection so long the manner in which they’re segregated, arranged and presented demonstrates certain degree of originality and creativity. In the Court’s opinion the process of creating a work is a subjective one and is a “projection of the author’s imagination”. If the result of such process is original and unique enough (meaning it can be easily distinguished from any other results of human activity), then it shall be protected by law as an artistic work. This happens every time we deal with a specific configuration of elements, particularly relevant and accurate when juxtaposed with the intended result, where the author uses his unbound discretion to select and arrange such elements. To apply this to the case at hand, the Claimant’s idea to organize the half-marathon to celebrate the town’s Independence Day along with a scrutine preparation of the marathon race plan so as to obtain a special certificate of the Polish Athletics Association, meet the requirements of an artistic work, as understood by the Act. The fact that similar race events had been organized by the town of Bochnia long before 2001 remained without any effect on the Court’s conclusion.

In particular the Claimant prepared the race plan independently, selected the respective streets of the city in such a way that the whole race plan would constitute an entirety, had a proper paving, that is a hardened one, and so that there were no substantial differences in route gradient. The race plan should take account of the conditioning of the terrain, routes of public transportation and additionally the length of the route should equal half the length of the actual marathon. Moreover, the Claimant saw to it that the race plan be certified and the result, which the participants of the race would likely achieve, could be comparable to those achieved in other like races in the country. The race plan has been recorded in the form of a map with the marathon route marked on it and the race description attached. To plan the route in such, and not other, way determines its originality and creativity, since no one has ever before drew the route of the Bochnia race in such topographic layout.

Additionally, the Court pointed to the new categories of the participants (teachers and persons with disabilities), in comparison to those of the Bochnia races that were organized before 2001, highlighting at the same time that “the requirement of novelty is not an inevitable feature of an artistic work”. The Court rejected the argument that any other person could prepare the race plan of the said half-marathon and reiterated, after the Supreme Court, that “the possibility of achieving analogical results by two different authors does not suffice to deprive a particular act of creativity, of the individual character.”

To conclude, the District Court in Tarnow held that by organizing the “Bochnia Independence Half-Marathon” against the will of the originator and using the race plan prepared by him, the Respondents infringed upon the latter’s copyrights. Hence, the Claimant was entitled to the protection of the polish copyright law. In the Court’s opinion the Respondents should have never free ridden on someone else’s creative efforts and should have come up with their own idea and race plan.

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

Trade mark law, case VI SA/Wa 2284/08

April 20th, 2009, Tomasz Rychlicki

In 1990 Zygmunt Piotrowski, well-know Polish graphic artist, created the logotype that depicted the porch with columns and attic finial of the Penderecki’s house in Luslawice with “heritage” inscription underneath. It was created for the Heritage Promotion of Music and Art company, whose founders were Elżbieta Penderecka and Janusz Pietkiewicz, later the director of the Polish National Opera. The logotype was adopted by the Heritage Films company that was founded in 1991 by Janusz Pietkiewicz and Lech Rywin after the withdrawal of Elżbieta Penderecka from Heritage Promotion of Music and Art company.

Heritage

At the request of Heritage Films, the Polish Patent Office in its decision of 27 June 2001, act signature Sp. 3/97 invalidated Heritage trade mark R-87806 belonging to the Piotrowski’s company. The Supreme Administrative Court in its decision of 14 December 2001, case file II SA 3446/01, confirmed the decision of the PPO, and dismissed the cassation complaint. The SAC clearly stated that the English word “heritage” is not a generic term for the services it was registered for, nor does it inform about its properties, quality or usefulness. Therefore “heritage” word can be used as a trade mark. It is not widely known or used in the market in order to identify such services as impresario and management consultancy services, the recruitment and placement of people for work for orchestra, soloists and artists of various disciplines of art. However the court held the the company name could be an obstacle to grant the rights of protection for a trade mark. It was unclear for the SAC why the PPO’s decision lacks the explanation as to why the picture of the porch with the HERITAGE inscription makes the right to the company name (which was existing from 1991) impossible to be applicable as grounds for the invalidation. If the reason would be the recognition of HERITAGE word to be protected by copyright law as the title, it should be better clarified. It was more necessary for the Court because the title could benefit from the copyright protection “only in very exceptional circumstances”.

The case went back to the PPO. On 17 April 2002 the Polish Patent Office invalidated of the right of protection of HERITAGE trade mark R-87806. One more time Mr Piotrowski filed a complaint before the Supreme Administrative Court. The SAC in its judgment of 12 March 2003, act signature II SA 1867/02, ruled that in accordance with the general rules, in the event of a collision between company name (the firm) and trade mark that has been registered with the “later precedence”, the priority shall be given to the right that existed earlier.

A year later, the Polish Patent Office registered Heritage Films trade mark R-151966. Zygmunt Piotrowski has requested the invalidation proceedings argued that the Heritage Films trade mark infringes on his personal and economic rights afforded by the copyright law regulations. The PPO rejected the request claiming the word “heritage” is a common expression and regardless of its importance for the artist it is not eligible for the copyright protection. Piotrowski filed a complaint against this decision. The Voivodeship Administrative Court in Warsaw in its judgment of 15 April 2009 case file VI SA/Wa 2284/08 ruled that the word “heritage” has no distinctive character and may be registered only in composition with some other description. And because it is not a subject of copyright protection the request had to be dismissed. Zygmunt Piotrowski has already announced he is going to file a cassation complaint.

Copyright law, case I ACr 590/95

September 12th, 2008, Tomasz Rychlicki

The No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) introduced changes into 17 U.S.C § 101. Definitions.

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

In Poland, we have judgment of the Appellate Court in Warsaw of 12 December 1995, case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32, where the Court held that benefits are generally a part of the net profit achieved as a result of copyright infringement. The benefits are also the savings on expenses for copyright fees, if the copyright infringement was based on the use of work without a proper remuneration. Interesting approaches in two different jurisdictions. I just need to remind you that the Republic of Poland is not a common law country.

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

Copyright law, case I ACa 668/06

July 18th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 May 2007, case file I ACa 668/06, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2008, No 12, item 39, p. 48, held that a trivial and simple language phrase being a short fragment of popular “Baśka” song and not being a citation or borrowed quote, that was included in the disputed advertisement, and at most being an inspiration and a reference to the distant associations, does not justify the assumption of copyright infringement.

The particular freedom concerns the advertising market. Indeed, such activity because of its short forms and the need for articulated skills must operate by abbreviations, references to familiar themes, characters and situations. An advertising is also a trade statement of informational nature, so it enjoys the right to freedom of expression and freedom of information. Restrictions of these rights may occur only to the extent necessary, by third party interests.

While preserving the principle of non-transferability of author’s personal (moral) rights, it is permitted to waive of the exercise of these rights by the creator, to third parties, including entrepreneurs.

April 22nd, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 March 2006, case file VI ACa 1012/05, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2007, No 12, item 36, p. 56, held that when it comes the legal protection of the author’s work it does not matter how the infringer came into the possession of the work, or how the work arrived to him, in particular, it does not matter that the work, which is the subject of the infringement came to the infringer as unsolicited correspondence sent electronically, the so-called spam. The protection is not only afforded to the well known creator, whose works are published in big numbers, but to anyone whose rights to a protected work have been infringed in any possible way, copyright law makes no distinctions in the field of protection depending on the value of the work and the recognition enjoyed by the author.

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

Copyright law, case II CKN 1289/00

December 26th, 2005, Tomasz Rychlicki

The Supreme Court – Civil Chamber in its judgment of 15 November 2002 case file II CKN 1289/00, published in the Supreme Court’s Bulletin of 2003, No 6, p. 7, the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2004, No 3, item 44, p. 66, held that the development of a grid of entries, and a method how to define the composition of difficult entries (lexemes/lemmas) are the manifestation of creative activity of the authors of the Polish language dictionary within the meaning of article 1 of the Polish Act on Authors Rights and Neighbouring Rights.

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