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Archive for: copyright misuse

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“. 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.

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.

I dubt their intelligence

October 26th, 2008, Tomasz Rychlicki

According to the article available at onet.pl website, the Government of Donald Tusk has plagiarised a draft of the law which was prepared by the cabinet of Jarosław Kaczyński. Such claim was raised by members of Polish Parliament belonging to the opposition party called Prawo i Sprawiedliwość. The Polish portal site tvp.info has informed that PiS politicians do not exclude the possibility to claim damages in the court because of copyright infringement.

- We think about filing a complaint against Tusk’s government because it’s obvious plagiarism – says Joachim Brudziński, member of Parliament, representing PiS – It was very frequently that PO politicians appropriated our ideas, but this time, we are dealing with converting the project to the letter – he adds.

I added links and I will repeat it again for my English readers. 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, explicitly says.

Art. 4. The following shall not be protected by copyright:
1) normative texts and the drafts thereof,

Categories: Art. 1 ARNR | Polish Act on Authors Rights and Neighbouring Rights | Polish law | copyright law | copyright misuse.

Unfair commercial practices, case DOK-6/2008

September 4th, 2008, Tomasz Rychlicki

In December 2005, the OCCP instituted antitrust proceedings against ZAiKS and the Polish Filmmakers Association (SFP), suspecting that – in order to maximise their profits – these organisations had made an agreement and fixed uniform charges for using audiovisual works and refused to negotiate their rates.

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

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

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

Funny terms and Carl wants to be sued

September 4th, 2008, Tomasz Rychlicki

There is an article available at valleywag.com website commenting on funny terms from TOU/TOS licenses. There is also a post regarding recent action of Carl Malamud at slashdot.org website. Go Carl!

California claims copyright to its laws, and warns people not to share them. And that’s not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him, which is almost a given if the state wants to continue claiming copyright. He thinks a federal court will rule in his favor: It is illegal to copyright the law since people are required to know it. Malamud helped force the SEC to put corporate filings online in 1994, and did the same with the patent office. He got the Smithsonian to loosen its claim of copyright, CSPAN to stop forbidding people from sharing its videos, and most recently Oregon to quit claiming copyright on state laws.

I’d like to remind you of some of my post I’ve “commited” regarding licenses’ issues. Among other things are posts such as “Oh, these Internet’s contracts” and “TOS not so absolute“.

Categories: US law | contract law | copyright law | copyright misuse.

It’s going to be an interesting decision

May 7th, 2008, Tomasz Rychlicki

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

Would you like to know how it looks in Poland? In short. 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.

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

The law is not for the people!

April 16th, 2008, Tomasz Rychlicki

I found it in the post available at boingboing.net website.

The State of Oregon is sending out cease and desist letters to sites like Justia and Public.Resource.Org that have been posting copies of Oregon laws, known as the Oregon Revised Statutes.

We’ve sent Oregon back two letters. The first reviews the law and explains to the Legislative Counsel why their assertion of copyright over the state statutes is particularly weak, from both a common law perspective and from their own enabling legislation.

The position of the Legislative Counsel is that their public access obligations have been fulfilled by their web site. However, their web site has over 500,000 HTML errors, does not meet Section 508 accessibility requirements, has no metadata, as our second letter points out.

Particularly galling is the fact that Thomson West has also made a copy of these statutes and has done so without a commercial license, but the Legislative Counsel explicitly told Tim Stanley of Justia that they weren’t going to send cease and desist letters to West. Evidently, it is much easier to pick on the little guys.

Oregon is not unique in asserting copyright over state law, but they are definitely one of the more aggressive in this kind of FUD campaign. Justia and Public.Resource.Org have decided this is an important issue to resolve and we’re going to hold firm on this. Anybody else who is making a mirror of the Oregon law should drop me a line and let me know.

The original letter can be found at scribd.com website. Would you like to know how it looks in Poland? In short. 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.

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) simple press news.

You may perform the legal interpretation for yourself.

Poland: Olsztyn’s problems with logo

April 11th, 2008, Tomasz Rychlicki

The local Polish newspaper Gazeta Olsztyńska reported (this article is scanned in a PDF file, Polish language) on Olsztyn City Council’s problems with the official logotype. According to Gazeta Olsztyńska, none of the city hall’s clerks thought about filing a trade mark application for Olsztyn for over 11 years. When they finally decided to do so, a big problem with the small Gmina Cekcyn unexpectedly occurred. A similiar logotype is already registered for Cekcyn’s administrative district. This issue spawned also another debate. Both logotypes are very alike.

Janusz Wierzyński (artist from Olsztyn) said that they must be kidding. According to Mr Wierzyński, the composition is almost the same. The arrangement of logo’s elements is reversed but those parts are identical and both signs are created in the same style. Małgorzata Lubieniecka-Chełstowska, an advocate specializing in the field of copyright tried to look at this issue from the viewpoint of “allowed inspiration” doctrine. However, she concluded that the definition of “allowed inspiration” and its confines are very blurred.

Making available – is it infringement or not?

February 26th, 2008, Tomasz Rychlicki

The US case law. Atlantic Recording Corp. v. Brennan, 2007 U.S. Dist. LEXIS 96276 (D. Conn. 2007).

At least one aspect of Plaintiffs’ distribution claim is problematic, however, namely the allegation of infringement based on “mak[ing] the Copyrighted Recordings available for distribution to others.” (Compl. 13.) This amounts to a valid ground on which to mount a defense, for “without actual distribution of copies… there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007)

Judge Janet Bond Arterton presents further very interesting conclusions. I guess, it is even more important, if you look at the whole P2P end-users suits’ issue.

In other similar cases brought by these Plaintiffs and other record labels, individual defendants have raised a host of colorable defenses; but due to the varying procedural postures, the viability of these defenses has largely yet to be conclusively determined. The defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at 3 (E.D.N.Y. 2006) (finding the defense non-frivolous); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir. 2007) (rejecting the defense as to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory Damages, 3 Geo. J. L. & Pub. Pol’y 601, 637 (2005);2 and (2) whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse, see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003) (“The doctrine of misuse prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”).

What do we have in the Polish law with regard to the aforementioned problem? 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.

Article 116.
1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.
3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.
4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Article 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.