Archive for: copyright infringement

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Copyright law, case I ACr 590/95

September 12th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 12 December 1995 case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32, held that benefits are generally a part of the net profit achieved as a result of copyright infringement. Looking at this issue from the comparative perspective, it is worth mentioning, that 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.

According to the Polish Court, 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“.

Categories: Art. 75 ARNR | copyright infringement | copyright law | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court | Polish courts | Polish law | US law.

Copyright law, case I CR 91/73

June 2nd, 2008, Tomasz Rychlicki

The Supreme Court in its judgment of 25 April 1973 case file I CR 91/73 ruled that the work of art becomes subject to copyright if it’s somehow fixed, i.e., if it takes any form, even if unstable and transient, but in so constant, so that the content and features of the work exerted artistic effect. The compositions of flowers (ikebana) meet this requirement. Therefore, it is not allowed to copy it without permission, inter alia, by photographic means, for any use other than personal use, in particular – for use in connection with the achievement of economic benefits.

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

Categories: Art. 1 ARNR | copyright infringement | copyright law | copyrightable subject matter | moral rights | permissible use of copyrighted materials | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Court | threshold of creativity.

Copyright law, case I KZP 18/03

April 13th, 2008, Tomasz Rychlicki

The Polish Supreme Court in its resolution of 21 October 2003 case file I KZP 18/03 held that the license agreement is essentially the contractual relationship, which on the one hand determines the permissions granted to the licensee, on the other hand it creates the obligation to pay (the right to remuneration) to authorized party, i.e. a licensor. Therefore, the provision “against the terms and conditions of authorization” that is used in Article 116 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 amendment, refers only to the right or permission to distribute the work, that was granted the licensee.

Article 116. 1. Whoever, without authorization or against its terms and conditions, disseminates other persons’ work, artistic performance, phonogram, videogram or broadcast in the original or derivative
version shall be liable to a fine, restriction of liberty or imprisonment for up to 2 years.
2. If the offender commits the act specified in paragraph 1 above in order to gain material benefits,
he/she shall be liable to imprisonment for up to 3 years.
3. If the offender commits the offence specified in paragraph 1 above a regular source of income or organizes or manages a criminal activity as specified in paragraph 1, he/she shall be liable to imprisonment for 6 months to 5 years.
4. If the offender of the act specified in paragraph 1 above acts unintentionally, he/she shall be liable to a fine, restriction of liberty or imprisonment for up to one year.

The Court ruled that the provision “against the terms and conditions of authorization” does not apply to obligations under the license agreement (the right to remuneration or the obligation to provide financial statements). This understanding of the concept of the authorization also refers the statutory license that existed before the amdendments to the ARNR, but with the difference that the source of “authorization” was not provided in a contract but only by statute.

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

Categories: Art. 116 ARNR | copyright infringement | copyright law | criminal law | Polish Act on Authors Rights and Neighbouring Rights | Polish courts | Polish Supreme Court | remuneration fee.

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.

Categories: Art. 1 ARNR | Art. 23 ARNR | Art. 29 ARNR | Art. 78 ARNR | Art. 79 ARNR | copyright infringement | copyright law | copyrightable subject matter | moral rights | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court | quotation right.

Copyright law, case VI ACa 1012/2005

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“.

Categories: Art. 1 ARNR | Art. 79 ARNR | case law | copyright infringement | copyright law | copyrightable subject matter | legal regulations on computer networks | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court.

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“.

Categories: Art. 1 ARNR | copyright infringement | copyright law | copyrightable subject matter | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Court.

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