Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: copyright ownership

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 ARNR.

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 I OSK 1975/10

June 13th, 2011, Tomasz Rychlicki

The Minister of Infrastructure did not respond to the request of a Polish company for disclosure of public information in the form of directory of multiple choice questions for the initial qualification tests for categories C1, C1 + E, C, C + E of driving license. The company filed a complaint of failure to act. The Voivodeship Administrative Court in Warsaw in its order of 25 August 2010 case file II SAB/Wa 150/10 dismissed the complaint. The Company decided to file a cassation complaint.

The Supreme Administrative Court in its order of 21 December 2010 case file I OSK 1975/10 dismissed it. The Court supported the view, in which an official document was correctly distinguished from an official documentary material. While the official document will be public information, the documentary material will not has such status, because it lacks formality/officiality features (it was not used by the official body in a given case and it was not directed outside that body). The court held that a set of questions would be used to carry out undefined tests, therefore, such questions are undoubtedly abstract in nature and do not constitute an official document. In this case, the company had not requested the disclosure of a particular form of the test – a set of questions used in a particular exam, and the subject of the request was entire collection of materials (a series of questions). In the opinion of the court such materials do not constitute public information under the 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) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 1.1 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.
2. The provisions of the Act shall not breach the provisions of other acts defining different principles and the mode of access to the information being public information.

The Court noted that only when these questions are used in a particular case, i.e. they are arranged, and used in a specific set of questions designed to check the level of knowledge of applicants for categories C1, C1 + E, C, C + E, they lose their abstract characteristic and become public information, however, such situation did not occur in this case.

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

Copyright law, case II CSK 527/10

June 6th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 25 May 2011 case file II CSK 527/10 held that a person who made some editorial changes of a scientific work that involved the removal of parts of dubious scientific value is entitled to claim the co-autorship of such a work. See also “Copyright law, case V CK 391/02“

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

Copyright law, case IV CSK 274/10

May 10th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 26 January 2011 case file IV CSK 274/10 held that creation of legal rules that are included in 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, and that concern copyright agreements, does not exclude the applicability of the provisions of the Civil Code, especially particular chapters of the CC. The conclusion of contracts other than these provided for in the ARNR, mainly the contract of transfer of copyrights (i.e. all economic rights that are primarily attributed to the creator) or the contract for the use of the work (licences), is not excluded if the specificity of copyright is also taken into account. There was also no reason to exclude – in principle – the possibility to establish the lease on copyright, of course, after the conditions set in Article 709 of the CC have been satisfied.

Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
§ 2. The rent may be stipulated in money or in performances of another kind. It may also be specified in terms of a fraction of the fruits.

Article 694. The provisions on lease shall apply respectively to tenancy with the observance of the provisions stated below.

Article 695. § 1. The tenancy concluded for a period longer than thirty years shall be deemed, after the lapse of that period, to be concluded for indefinite time.
§ 2. Repealed.

Article 696. The tenant shall exercise his right in accordance with the requirements of proper management and cannot change the designation of the object of tenancy without the consent of the landlord.

Article 697. The tenant shall be obliged to make repairs indispensable for maintaining the object of tenancy in a non-deteriorated condition.

Article 698. § 1. The tenant cannot, without the consent of the landlord, give the object of tenancy to a third party for gratuitous use nor for holding under a subtenancy.
§ 2. In the case of non-observance of the above obligation, the landlord may terminate the contract of tenancy without observing the time limit of the notice.

Article 699. If the time limit of the payment of the rent is not specified in the contract, the rent shall be payable after a time limit customarily accepted, and in the absence of such custom semiannually at the end of every period.

Article 700. If, as a result of circumstances for which the tenant is not liable and which do not pertain to him personally, the usual revenue from the object of tenancy is considerably reduced, the tenant may claim a reduction of the rent for the given economic period.

Article 701. The movable things covered by the statutory right of pledge vested in the landlord shall include the things used in the running of a farm or an enterprise if they are on the area of the object of tenancy.

Article 702. If it is stipulated in the contract that in addition to the rent the tenant shall have the obligation to pay taxes and bear other burdens connected with the ownership or the possession of the object of tenancy as well as to bear the costs of its insurance, the statutory right of pledge vested in the landlord shall also cover his claims to the tenant for the reimbursement of the sum paid by the landlord for the reasons specified above.

Article 703. If the tenant is in delay with the payment of the rent for at least two full periods of payment, and if the rent is payable annually, if he is in delay for more than three months, the landlord may terminate the contract of tenancy without observing the time limit for the notice. However, the landlord shall warn the tenant by setting him an additional time limit of three months for the payment of the rent in arrear.

Article 704. In the absence of a contract to the contrary, the contract of tenancy of agricultural land may be terminated one year in advance at the end of the year of tenancy, and another contract of tenancy, six months in advance before the lapse of the year of tenancy.

Article 705. After the termination of the tenancy, the tenant shall be obliged, in the absence of a contract to the contrary, to return the object of the tenancy in the condition in which it should be in accordance with the provisions on the exercise of tenancy.

Article 706. If, at the termination of the tenancy, the tenant of agricultural land leaves it sown according to his duty, he may claim the reimbursement of the outlays on those crops, where, contrary to the requirements of proper management, he did not receive the appropriate crops at the beginning of the tenancy.

Article 707. If the tenancy ends before the end of the tenancy year, the tenant shall be obliged to pay the rent in such proportion in which the fruits which he collected or could have collected bear to the fruits from the entire year of tenancy.

Article 708. The provisions of the present Section shall apply respectively where the person taking an agricultural immovable property for use and collection of fruits is not obliged to pay the rent but only to pay the taxes and to bear other burdens connected with the ownership or the possession of land.

Article 709. The provisions on the tenancy of things shall apply respectively to the lease of rights.

The lease would have to include at least one field of exploitation (the concept included in the Polish copyright law, where the owner has the right to dispose the use of a copyrighted work on different fields of use) and the associated possibility of obtaining benefits, for example, by allowing the lessee to display the copyrighted work for profits.

The Court ruled also that the exhibition of photographs can be a derivative work as defined in the Article 2(1) of the ARNR.

Art. 2.-1. Derived works made from the work of another, in particular translations, transformations and adaptations, shall be protected by copyright without prejudice to the rights in the original work.
2. The manner of disposal of the derived work and the use thereof shall be subject to the consent of the creator of the original work (dependent copyright), except where the economic rights in the original work have expired.
3. The creator of the original work may withdraw his consent if, in the course of the five years following its grant, the derived work has not been disclosed. Remuneration paid to the creator shall not be susceptible of repayment.
4. A work inspired by another’s work shall not be considered a derived work.
5. The name of the creator of the original work and the title thereof shall be mentioned on the copies of the derived work.

However, as in the case of other works, the final assessment depends on the outcome of the examination that was made in terms of statutory criteria for the work to be protected by copyright, taking into account that, while defining the derivatives, the basic prerequisite of creativity has to be taken into account.

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.

Access to public information, case II SAB/Wa 155/09

March 3rd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 4 February 2010 case file II SAB/Wa 155/09 held that it should be noted that the status of public information is not only afforded to documents directly prepared/edited and technically produced by a public authority, but also to those whose the authority uses to carry out the tasks specified by the law, even when the copyrights belong to another entity. So therefore as documents being the subject of disclosure of public information as defined in the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, should be deemed the expertises/opinions made for the authority that is required to make the public information available, if such documents are used to perform its task, even if the copyright on these opinions belong to other entities.

The Court held that the overriding principle related to disclosure of public information, is to provide such information. The problem of subsequent use of the documents covered by copyright is not governed by the API, but may be subject to any claims as defined by copyright law and civil law. However, this issue cannot justify the refusal to disclose public information, because the only limits are rules on secrets protected by law. In this case, a natural person requested the expertise prepared for the Ministry of Internal Affairs and Administration, in connection with the creation by this body of IT systems. Such documents in the light of the above-mentioned conclusions are deemed as public information, and therefore should be disclosed, if there is no data that are secrecy protected by law.

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 PKN 196/98

March 21st, 2005, Tomasz Rychlicki

The Supreme Court in its judgment of 26 June 1998 case file I PKN 196/98, published in the Jurisprudence of the Supreme Court, the Chamber of Administrative, Labour and Social Insurance (in Polish: Orzecznictwo Sądu Najwyższego Izba Administracyjna, Pracy i Ubezpieczeń Społecznych) of 1999, No 14, item 454, ruled that if the performance of the duties that are originating from the employment relationship has to rely on the creative activity of an employee then it depends on the will of the parties to whom the author’s economic rights will be attributed. If the ownership of these rights is undefined in the employment contract, it means that within the limits of the employment contract and consistent intention of the parties, the author’s economic rights to these works are acquired by the employer in the moment of their acceptance (article 12(1) f the Polish Act on Authors Rights and Neighbouring Rights).

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