Archive for: copyright law

Copyright law, case II SA/Gd 529/10

October 10th, 2011, Tomasz Rychlicki

The Mayor of Gdańsk city received a request to disclose an architectural project of the building. The Mayor refused and explained that this request could not be executed because it concerns the copyrighted work. By issuing certified copies the Mayor creates new documents, that may be used in different situations. The applicant argued that he needs a copy, not a certified one. The case was dismissed by the Voivode in its order of 25 May 2010 no. WI.I/EK/7111-121/10. The Voivode is the administration body that hears complaints against such decisions, and the applicant decided to bring his case before the court.

The Voivodeship Administrative Court in Gdańsk in its judgment of 26 January 2011 case file II SA/Gd 529/10 overturned both decisions. The Court held, that although the architectural project of a building is a work covered by copyright protection, according to the provisions of Article 332 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, it is permitted to use copyrighted works for the purposes of public security or for the purposes of administrative, court or legislative proceedings and any reports thereof.

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

Tax law, case I FSK 1215/10

September 24th, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 9 September 2011 case file I FSK 1215/10 ruled that activities of the Polish Artists’ Association, a collecting society which is responsible for collective management of artists’ and performers’ rights that is based on signing of licensing agreements with copyright users and collecting and distribution of royalties, is deemed as a service within the meaning of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535 with subsequent amendments, and such services are not subject to tax exemptions, because the association charges a fee from these activities, and it is not funded by membership fees.

Copyright law, case V CSK 373/10

August 5th, 2011, Tomasz Rychlicki

The Polish Filmmakers Association (SFP) sued a local cable television. The dispute concerned unpaid royalties, because this local TV rebroadcasted movies without a proper agreement with the Collecting Society. SFP is the only of such collection societies in Poland responsible for the management for movies and TV series. The court ordered the TV station to cease rebroadcasting, and ordered to pay compensation equivalent to triple rates of remuneration. The TV station argued that the calculation of damages was based on rates that are not market prices, since they have benn negotiated and established by the only organization on the market. The case went to the final instance.

The Supreme Court in its judgment of 15 June 2011 case file V CSK 373/10 held that a court cannot prohibit rebroadcasting of TV programs, if it was a part of the activity of a cable television, even if rebroadcasting was made without the consent of the collecting society. If the parties argue about rates for rebroadcasting, the court shall appoint a witness expert, because the rates that are used by the collecting societies for rebroadcasting are not market rates by definition, because they were adopted by one organization. Moreover, the Court ruled that the claim for payment of double of the respective remuneration as provided in Article 79(1) pt. 3 letter b of the ARNR, is a special way of protecting author’s economic rights. It has the compensatory nature, and it’s not required to demonstrate evidence of the culpability of the person who used copyrighted work without the required permit, the damage that was suffered by the rightholder and benefits that were acquired by the infringer, during the suit.

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), published in 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 SAB/Łd 53/10

June 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 20 December 2010 case file II SAB/Łd 53/10 ruled that the fact that different authors created questions from different fields of medicine for the National Specialist Examination, and these questions are copyrightable works within the meaning of the Article 1(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, does not exclude the possibility that the Authority could create, on the basis of these works, the examination test that will be used to carry out the National Specialist Examination.

Article 1(1). The subject matter of copyright is any expression of creative activity having individual character and manifested in any material form, regardless of the value, intended purpose and manner of expression thereof (work).

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,

Therefore, the works used for the state examination are deemed as official documents and the unused questions which are known as the “pool of questions” are official documentary materials within the meaning of Article 4(2) of the ARNR.

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“.

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“.

Tax law, case II FSK 1140/09

November 21st, 2010, Tomasz Rychlicki

In the request, which was submitted to the tax authorities on 8 July 2008, a Polish company (the Company) explained that it buys the rights to movies, which are intended for sale to TV stations. The contract that is signed with a foreign company from which Polish Company buys rights for movies concerns several titles, each of which is determined, by a unique unit price and a 3-year period in which the movie can be broadcast on a television. The start date for broadcasting begins with one month to twenty months from the date of signing the agreement and ends after 3 years. Records of the dates are assigned to the emission of the purchase agreement signed with the television station. The whole contract is payable in seven installments. Before the date of payment of each installment the Company issues a VAT invoice to the buyer. A foreign company from which these right are bough also issues to the Company the invoices, according to the payment schedule. Percentage payment schedule in the contract of purchase and sale are identical.

The Company inquired the tax authorities i) whether the rights should be treated as commodities, or as intangible and legal assets that are subject to depreciation over two years, ii) and at which time/moment the company creates the revenue that is subject to income tax of legal persons, iii) and in which time the company creates tax deductible.

According the Company those TV rights are bought for resale and should be deemed as goods/commodities and are not subject of depreciation under the terms of the Legal Persons’ Income Tax Act. While presenting the view on the creation of the income the Company stated that in this situation, transfer of property rights takes place not earlier than in the date of the exercise thereof by the purchaser. Revenue in the amount of license fee for each film is formed/created on the date of fulfillment of all contractual terms, i.e. delivery of materials and the beginning of the license period. The starting materials can be supplied before the date of license period, and after that date. The invoice installments issued by the Company are accounted in proportion to the prices on all movie titles that are subject to a given contract/agreement, and therefore the amount concerning movies which have not entered the license period, or starting materials have not been supplied, are deemed as received advances and are not taxable income. The deductible is the total price for the given movie, resulting from the purchase agreement signed with a foreign company and is created in the month of sale. The installment purchase invoices received by the Company are accounted in proportion to the prices on all movies being subject to a given contract/agreement, and therefore the amount concerning movies which have not entered a period of license, or starting materials have not been supplied, are not deductible costs for tax purposes.

The Minister of Finance in the individual interpretation issued of September 2008, held that the position of the Company on a legal assessment of the facts with respect to qualifications of tax on turnover of rights for movies was correct, but it also held that the position on the time/moment of creation of the revenue and recognition of income tax deductible cost was incorrect.

The Ministry of Finance ruled that, pursuant to the provisions of 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, by license agreement, the licensor grants the licensee the authorization (license) to use his right of intellectual property, and the licensee agrees to pay the license fee. The right to use the audiovisual work is the property right. If subject of business activity of the Company (licensee) is marketing (distribution) of such rights, in this case, those rights are the goods.

While referring to the issue of the time/moment of creation of the revenue, the Tax Office found that expenditure on the acquisition of rights to the use of audiovisual works are direct costs associated with the disposal of such property/economic rights. Therefore, the applicant’s position that the amount concerning titles of movies which have not entered the period of a license or for which the starting materials has not been provided, are not deductible for tax purposes, was found invalid. The Company filed a request to case the infringement of law by changing the interpretation of the time/moment of creation of the revenue (second question). In response to that request, the Minister of Finance said that there are no grounds to change it.

The company filed a complaint against this interpretation. The Voivodeship Administrative Court in Warsaw in its judgment of 1 April 2009 case file III SA/Wa 3472/08 agreed with the Ministry of Finance and dismissed it. The cassation complaint was dismissed by the Supreme Administrative Court in its judgment of 2 November 2010 case file II FSK 1140/09.

Access to public information, case V Ca 2388/10

November 9th, 2010, Tomasz Rychlicki

Professor Janusz S. Bień requested the Institute of Literary Research of the Polish Academy of Sciences to disclose public information on the license agreement, concerning the online version of the Dictionary of the Polish language of the sixteenth century. The request was filed under 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. Mr Bień did not receive the requested information, but also was not denied this information in the form of an administrative decision. As a result, prof. Bień brought an action for failure to act. The Voivodeship Administrative Court in Warsaw, in its judgment of 18 June, 2009 case file II SAB/Wa 14/09 ordered the Director of the Institute of Literary Research to examine the request.

On 13 August 2009, the Institute of Literary Research refused to provide requested public information because of the secret of the entrepreneur. The basis for refusal was Article 5(2) of the API.

Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.

The entity, which was denied the access to the public information in respect to its exclusion of its openness when quoting the protection of personal data, the right to privacy and the secret other than state, official, treasury or statistical secret, is entitled to put an action to the court for making such information available. Professor decided to bring an action.

The Regional Court for Warszawa Śródmieście I Civil Division in its judgment of 12 March 2010 case file I C 1305/09, dismissed the action because the prof. Bien has not demonstrated that he is legally entitled to obtain a photocopy of the disputed agreement. The Court arbitrarily assumed that as a basis for disclose of a photocopy of the disputed agreement should be used Article 222 § 1 of the Civil Code governing the claim of the owner of a thing against the person who actually possess it (rei vindicatio).

Article 222. § 1. The owner may demand of a person who has actual control of a thing to release that thing to him unless that person has the right, effective with respect to the owner, to control the thing.
§ 2. The owner shall have the right to claim restitution of his lawful position and abstention from infringements of law, against a person who infringes his ownership otherwise than by depriving the owner of the actual control of a thing.

Professor Bień appealed. The District Court in Warsaw, V Civil Division, in its judgment of 9 November 2010 case file V Ca 2388/10, annulled the contested judgment and ordered Institute of Literary Research of the Polish Academy of Sciences to provide photocopies of the agreement.

Copyright law, case IV CR 127/7613

September 19th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 5 October 1976 case file IV CR 127/7613 ruled that the photography is not protected by copyright, when it only serves as a registration of situation or occurrence. Such photo is taken by the author in clearly defined manner, by using well-defined standards, etc., and it lacks the threshold of creativity.

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 the trade mark HERITAGE FILMS. 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 III CZP 1/10

July 24th, 2010, Tomasz Rychlicki

The Supreme Court in its order of 13 July 2010 case file III CZP 1/10 held that operators of cable networks may initiate court’s proceedings with regard agreements on remuneration scales/tables concluded or to be concluded with the competent organization for collective management of copyright, that concerns rebroadcasting of copyrighted works on radio and television programs, only after the exhaustion of the proceedings before the Copyright Commission. The issue of the inadmissibility of the courts’ proceedings was very unclear lately bacuse there was divergent case law of the Supreme Court and legal comentators presented different opinions and views. See “Copyright law, case IV CSK 303/06” and “Copyright law, case III CZP 107/07“.

The Copyright Commission, with a composition of three persons, two of them designated by the parties from among the arbitrators and the third co-opted as referee by the other two, shall settle disputes concerning the application of the scales referred to in article 211 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.

Art. 211
1. Cable network operators may rebroadcast on cable, works that are broadcasted on radio and television organization solely on the basis of an agreement with the competent organization for collective management of copyright.

2. In case of any disputes regarding the conclusion of the agreement referred to in paragraph 1, the provisions of article 108(5) shall apply.

If one of the parties does not designate an arbitrator or if the arbitrators do not designate a referee, the arbitrator or referee in question shall be designated by the Ministry of Culture and National Heritage. The party that is not satisfied with the decision of the Copyright Commission may, within a period of 14 days of the notification of the said decision, bring a judicial action before the competent district court.

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

Personal interest, case VI ACa 1402/09

July 16th, 2010, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 15 July 2010 case file VI ACa 1402/09 held that even if a website only republishes articles or summaries of works published in major periodicals, it is not absolved from responsibility for infrigement of personal interests of a person who was described in such an article.

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 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. 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), published Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent 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 referred 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 I CR 312/75

May 22nd, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 19 September 1975 case file I CR 312/75 held that flower compositions (ikebana) were works of art within the meaning of the old Polish copyright law, and that the defendant by publishing of photographs of these compositions and their distribution infringed on authors’ rights (moral rights) of the creator of these compositions. In addition, the Court noted that the limitations of the rights to distribute works and to remuneration, governed by the old copyright law, in the name of social interest (use), meant that in the cases provided for in the cited provisions it was allowed to distribute copyrighted works, and use these works in principle, without paying remuneration, and thus deprive the holders of their rights.

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

Tax law, case III SA/Wa 1823/09

May 17th, 2010, Tomasz Rychlicki

The Director of Tax Control Office in Warsaw ruled that the amounts of cash referred to as a “license to exercise the media rights” that were received by Legia football club from the Polish Football Association (PZPN), should be subject to tax on goods and services. Legia argued that such an agreement is not a contract of sale of rights, but the license agreement. However, the Director has found that the PZPN was the sole owner of intangible (economic and non econimic) property rights to the Polish national championships. To be the sole owner of the rights to football matches, PZPN had to acquire these rights. Therefore, Legia had to transfer these rights in some way, and that included proper fee.

The Director referred to a series of court decisions and pointed out that the sports’ event, namely football games, do not constitute a copyrightable work under 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. Legia as a football club does not take action on the creative nature. In the opinion of the Director, it is not precluded that on the legal market may exist licensing agreements relating to intangible property, other than works that are defined in the ARNR.

Only article 43(1) pt 13 of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535, includes a reference to the ARNR.

Art. 43. 1. The following shall be exempted from the tax:
13) licensing or authorization to use a license, as well as assignment of the proprietary right within the meaning of the copyright law – in relation to computer programmes – free of charge, for educational facilities, referred to in paragraph 9.

That provision indicates the grant of the license or authorization to use copyright licenses and the transfer of property rights under copyright law (the ARNR). The absence of such references in other regulations means that the transfer of copyright may affect the rights of the author, or a sole owner of any intangible property, which does not have the characteristics of the copyrightable work. A similar situation will occur in the case of a license. Wherever there is no reference to copyright law (ARNR) it will also mean the license agreement for the use of intangible property other than the copyrightable work.

The Tax Office ruled that Legia transfered “media rights” to the PZPN, so the Association could fully manage of them, and so enter into an agreement concerning the disposition of such rights. The rate of the tax shall be 22% for such service. The tax shall become chargeable upon the receipt of all or part of payment, though not later than upon the expiry of the due date specified in the contract or invoice – for the performance in the territory of the country of services referred to in article 27(4) pt 1 of the GSTA.

4. The provision of paragraph 3 shall apply to the following services:
1) sale of rights or granting of licenses or sublicenses, transfers and assignments of copyrights, patents, trademarks, letting joint trademarks or joint guarantee marks for use, or other related rights.

Legia did not agree with the decision of the Director of Tax Control Office and filed a complaint against. The Voivodeship Administrative Court in Warsaw in its judgment of 26 March 2010 case file III SA/Wa 1823/09 dismissed it.

Personal interest, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

The District Court in Wrocław in its judgment of 18 March 2010 case file I C 1272/09 ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.

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.

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz Rychlicki

Arnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on the provisions of Articles 212 § 2 and 216 § 2 of the 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 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court in Wroclaw was obliged ex officio under Article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to Article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction). Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.

[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The Court in its order of 31 December 2008 case file V K 1595/08 referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the Court in Wrocław did not consider that the alleged offense was not committed.

See also “Personal rights, case I ACa 949/09“.

Copyright law, case I CSK 160/09

January 11th, 2010, Tomasz Rychlicki

The Polish Supreme Court in its judgment of 16 November 2009 case file I CSK 160/09 confirmed that no consent of the portrayed sportsmen is necessary for the athletics association to make such images available to the sponsors. The judgment came out as a result of a heated dispute between the Polish national football (soccer) team player Maciej Żurawski and TP S.A. (a telecommunication company) – the official sponsor of the team. The dispute regarded the unauthorized dissemination of Żurawski’ s image by TP S.A. in its various advertising and informational materials (such as fliers, posters, press and television). Żurawski desired that TP S.A. ceased to publish and disseminate his images and that it publicly apologized to him. The proceedings were joined by the Polish Football Association (PZPN) as a third party defendant. The bone of contention in this case were the pictures taken during the photo shoot of the national soccer team prior to the world championship in Germany in 2006. The story goes that in 2004, PZPN entered into a sponsorship agreement with TP S.A., pursuant to which PZPN obliged itself to:

1) allow TP S.A. to use the pictures of the national team in all of TP S.A. advertising and informational materials; and
2) to obtain the respective players’ consent to do so.

In 2006 the national football team participated voluntarily in a photo shoot. All players were duly informed as to what purposes the pictures would serve, and how they would be used. However, no formal consent forms were signed. The players did not sign any Representative’s Cards (which explicitly stated the player’s obligation to participate in events such as i.e. the photo session in question) either. Additionally, none of the players received any remuneration for the photo session. And that’s what’s most problematic in this case. Pursuant to article 81 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 right to disseminate the image of a person does not require the consent of that person (unless explicitly stated otherwise) if that person had received an agreed to remuneration.

The Court of first instance found for Zurawski, however the appeal court reversed and dismissed the case. The reason of that were differing interpretations of article 33(2) of the Act on Qualified Sports – AQS – (in Polish: Ustawa o sporcie kwalifikowanym) of 29 July 2005, Jurnal of Laws (Dziennik Ustaw) No 155, item 1298, with subsequent amendments, which was relied on by TP S.A. and PZPN in their argumentation.

each member of the national team, grants an exclusive right to his/her image in the national representation team outfit, to an appropriate athletics association, which is then entitled to use that image for economic purposes within the scope set forth in the Statute of that association or other international organization active in that field.

However, the very same article in sec. 2 states that the representative does indeed give his/her consent to disseminate his/her image in the national representation team outfit, however he/she does that within the meaning of article 81(1) of the ARNR. And this led to two different interpretations by two different courts: court of I instance held that article 33(2) of the AQS creates a direct duty to obtain a separate consent from the sportsman, whereas the appeal court found that such consent is impliedly given the moment the athlete (here football player) joins the national team. The SC agreed with the latter interpretation, stating that by joining the national team the player does indeed agree to a significant limitation on his right to image, whenever the image consists of him in the national representation’s outfit. Other than that he retains full rights to his right to publicity (in particular image). Hence, Żurawski ultimately lost the case.

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

Copyright law, plagiarist pays

December 11th, 2009, Tomasz Rychlicki

According to the recent article published by Polish newspaper Gazeta Wyborcza, entitled “Kurpisz ma wyrok za plagiat. I to z błędem!“, Kurpisz – Polish Publishing House from Poznan has been found guilty of plagiarism and has to pay PLN 148,000 as well as apologize to the journalist whose copyrights it infringed.

Kurpisz was accused of plagiarising by Andrzej Gowarzewski, a sports journalist from Katowice, the author of the Encyclopedia of World’s Soccer Championships (in Polish: “Encyklopedii piłkarskich mistrzostw świata”). Gowarzewski spent over a decade travelling around, in particular, South America collecting detailed data (such as the original spelling of the players names, exact time of the goals scored during the games, team composition) for his encyclopedia. His efforst were rewarded when british „World Soccer“ magazine – an undoubted authority in the field – has pronounced the book one of the 7 best books on soccer in the world.

Gowarzewski has been working and successively expanding his encyclopedia since 1991. In 2001 he came across a similar book, published by Kurpisz Publishing House. To his great astonishment the book contained information about 500 games, literally “carbon copied” from his work. The publisher repelled the accusations, claiming that it had used information commonly available and thus not protected by copyright, very much like the data in the yellow pages. Kurpisz arguments would have most likely prevailed, had it not been for the flair of the journalist, who set a smart trap for the publisher: Gowarzewski deliberatley made several material mistakes in his encyclopedia, just to subsequently find that they were repeated in the Kurpisz version of the book.

The District Court from Poznań had no reluctances finding the publisher guilty of plagiarism. It held that in copying such substantial data, thouroughly and personally collected over the years by the journalist, the Kurpisz has free ridden on the creative efforts of Gowarzewski and should pay him PLN 148,000 in damages (that is 15% of the proceeds from the sale of Kurpisz’s books, multiplied by 3, the so-called treble damages) based on article 79 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.

Article 79
1. The rightholder may request from the person who infringed his/ her author’s economic rights to:
1) cease the infringement;
2) eliminate the consequences of the infringement;
3) repair the inflicted damage:
a) on the general terms or
b) by payment of double or, where the infringement is culpable, triple the amount of respective remuneration that would have been due as of the time of claiming it in exchange for the rightholder’s consent for the use of the work;
4) render the acquired benefits.

2. Regardless of the claims referred to in paragraph 1, the entitled person may request:
1) single or multiple announcement made in the press with the statement of appropriate content and form or to announce to the public a part or all of the court’s judgment in the considered case, in the manner and within the scope specified by the court,
2) to pay by the person who infringed author’s economic rights, the appropriate sum of money, not less than twice of the amount of firm benefit achived by the perpetrator of the infringement, to the Fund referred to in article 111, if the infringement is culpable and was made during the economic activities carried out in someone else or in his own name, even on someone else’s account.

The plagiarist must also publicly apologize to the author on the pages of a nation wide newspaper – Rzeczpospolita.

It has not been the first time that the Kurpisz Publishing House infringes copyrights of another and has to bear the consequences. In 2004 the court in a similar case imposed on the publisher a fine of over PLN 500,000, which constituted 60% of the proceeds from the sale of copied “Dictionary of contemporary Polish”. The high amount of penalty was justified by the fact that the publisher had copied as much as 60% of the dictionary of Polskie Wydawnictwo Naukowe (PWN).

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

Polish case law on copyright

December 9th, 2009, Tomasz Rychlicki

A more detailed discussion about each judgment may be found under the link provided with the case file. All judgments are presented in the chronological order.

– The judgment of the Regional Court in Lublin of 27 March 2015 case file I Ns 700/12.

– The judgment of the Constitutional Tribunal of the Republic of Poland of 17 February 2015 case file K 15/13.

– The judgment of the Appeallate Court in Warsaw of 7 May 2014 case file I ACa 1663/13

– The judgment of the Supreme Court of 27 June 2013 case file I CSK 617/12.

– The judgment of the Appeallate Court in Lublin case file I ACa 134/13.

– The order of the Appeallate Court in Białystok of 7 February 2013 case file I A Cz 114/13.

– The judgment of the Appellate Court in Warsaw of 27 October 2011 case file VI ACa 461/11.

– The order of the Polish Supreme Court of 26 October 2011 case file III CZP 61/11.

– The judgment of the Supreme Court of 21 October 2011 case file IV CSK 133/11.

– The judgment of the Supreme Court of 17 October 2011 case file III CSK 30/11.

– The judgment of the Constitutional Tribunal of the Republic of Poland of 11 October 2011 case file P 18/09.

– The judgment of the Supreme Court of 15 June 2011 case file V CSK 373/10.

– The judgment of the Supreme Administrative Court of 21 July 2011 case file I OSK 678/11.

– The judgment of the Supreme Court of 25 May 2011 case file II CSK 527/10.

– The judgment of the Voivodeship Administrative Court in Gdańsk of 26 January 2011 case file II SA/Gd 529/10.

– The judgment of the Supreme Court of 26 January 2011 case file IV CSK 274/10.

– The order of the Supreme Administrative Court of 21 December 2010 case file I OSK 1975/10.

– The judgment of the Voivodeship Administrative Court in Łódź of 20 December 2010 case file II SAB/Łd 53/10.

– The judgment of the District Court in Warsaw of 14 September 2010 case file I C 626/06. Not final yet.

– The judgment of the Supreme Court of 13 July 2010 case file III CZP 1/10.

– The judgment of the Supreme Court of 22 June 2010 case file IV CSK 359/09.

– The judgment of the Appellate Court in Lublin case file I ACa 206/10.

– The judgment of the Polish Supreme Court of 16 November 2009, case file I CSK 160/09.

– The decision of the Constitutional Tribunal of 21 October 2009, case file P 31/07.

– The judgment of the Supreme Court of 27 February 2009, case file V CSK 337/08.

– The judgment of the Supreme Court of 19 June 2008, case file V CSK 22/08.

– The judgment of District Court in Tarnów of 20 December 2007 in re: Bochnia Independence Half-Marathon, case file I C 238/06.

– The judgment of the Supreme Court of 6 December 2007 case file III CZP 107/07.

– The judgment of the Appellate Court in Warsaw of 17 October 2007 case file VI ACa 1259/06.

– The judgment of the Appellate Court in Warsaw of 29 June 2007 case file VI ACa 210/07.

– The judgment of the Appeallate Court in Warszawa of 11 May 2007 case file I ACa 1145/06.

– The judgment of the Supreme Court of 3 January 2007 case file IV CSK 303/06.

– The judgment of the Appellate Court in Warsaw 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.

– The judgment of the Supreme Court of 25 January 2006 case file I CK 281/05, published in the Supreme Court’s Bulletin of 2006, No 5, the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2006, No 11, item 186, p. 64, the “Wokanda” magazine of 2006, No 7-8, p. 17.

– The judgment of the Supreme Court – Civil Chamber of 13 January 2006 case file III CSK 40/05, published in the Supreme Court’s Bulletin of 2006, No 3, the “Wokanda” magazine of 2006, No 6, p. 6, the Review of Economic Legislation (in Polish: Przegląd Ustawodawstwa Gospodarczego) of 2006, No 7, p. 32.

– The judgment of the Supreme Administrative Court of 13 October 2005, case file FSK 2253/04.

– The judgment of the Polish Supreme Court of 23 November 2004, case file I CK 232/04.

– The judgment of the Supreme Court of 3 December 2003 case file I CK 312/02.

– The judgment of the Supreme Court of 7 November 2003 case file V CK 391/02, published in OSN 2004, No 12, item 203.

– The resolution of the Supreme Court – Criminal Chamber of 21 October 2003 case file I KZP 18/03.

– The judgment of the Supreme Court – Civil Chamber 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.

– The judgment of the Supreme Court – Civil Chamber of 26 September 2001 case file IV CKN 458/00, published in the electronic database Legalis.

– The judgment of the Supreme Administrative Court of 30 June 1999 case file I SA/Lu 408/98, unpublished.

– The judgment of the Supreme Court 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.

– The judgment of the Appellate Court in Warsaw of 2 October 1996 case file I ACa 2/96.

– The 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.

– The judgment of the Appellate Court in Warsaw of 5 July 1995 case file I ACr 453/95, unpublished.

– The judgment of the Supreme Court of 5 October 1976 case file IV CR 127/7613.

– The judgment of the Supreme Court of 19 September 1975 case file I CR 312/75.

– The judgment of the Supreme Court of 25 April 1973 case file I CR 91/73.

– The judgment of the Supreme Court of 10 February 1970 case file I CR 666/69, published in OSP 1972, No. 2, item 30.

– The judgment of the Supreme Court of 8 November 1932 case file II. 1K. 1092/32, published in Zb. Orz. 1933/I item 7.

See also “Polish regulations on copyright“.

Copyright law, case V CSK 22/08

November 16th, 2009, Tomasz Rychlicki

The Society of Authors and Publishers Polish Book from Kraków (in Polish: Stowarzyszenie Autorów i Wydawców Polska Książka w Krakowie) is one of the Polish collecting societies. The Society sued Euroimpex company which is a distributor of reprographic equipment, mainly photocopiers and scanners. The suit was based on Article 20(1)(ii) of of 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.

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 District Court in Kraków ordered Euroimpex to pay the reprographic fee in the amount of 124,678 PLN. Euroimpex filed an appeal in which it argued that the provisions of ARNR are unconstitutional. However, the Appellate Court in Kraków shared the opinion issued by the District Court and ruled that there is a lack of grounds to question the compliance of article 20(1)(ii) and article 105(2) of the ARNR with the constitutional norms.

Article 105
1. The collective administration organization 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 collective administration organization 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.

A similar view was also expressed in relation to provisions of the Regulation of the Minister of Culture of 2 June 2003 on designation of categories of devices and media used for recording of productions and payments levied on sales of these devices and carriers carried out by producers and importers, Journal of Laws (Dziennik Ustaw) No. 105, item 991. Euroimpex filed a cassation complaint.

The Supreme Court in a judgment of 19 June 2008, case file V CSK 22/08, ruled that according to the settled case law, any court, in principle, has the same power to assess whether the provisions of regulation that may be applicable in a given case are not inconsistent with the Constitution. Additionally, the SC ruled that the provisions related to the remuneration fees are justified and their introduction was an expression of global trends in intellectual property law that was also made in order to compensate authors and publishers for what they lose by copying or reproduction of works made by third persons for the personal use. These are the civil law claims, which the collecting societies have the right to collect and which they are allowed to claim before the court. As these fees are divided, is no longer a matter to be decided by the Court, but it is the inner matter of organization and artists who are members of this organization.

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

Copyright law, the allowed personal use

November 16th, 2009, Tomasz Rychlicki

Downloading MP3s (or movies, pictures, press articles) is not illegal under the Polish law. According to the provisions of Article 23 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.

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.

That was also explicitly said in Rzeczpospolita’s article entitled (this is my loosely translation of course) “Downloading MP3’s files is not a crime“.

No one in Poland will go to prison for downloading music or movies from the Internet. But you can get there for file sharing.

Computer software is protected on different rules. There are proper provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Chapter XXXV
Offences against Property
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.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine]

There is also Chapter 14 entitled Criminal Liability 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.

Copyright law, case P 31/07

October 28th, 2009, Tomasz Rychlicki

A person who was 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 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. 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 actions 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 ACa 1145/06

August 2nd, 2009, Tomasz Rychlicki

The Appeallate Court in Warszawa in its judgment of 11 May 2007 case file I ACa 1145/06 held that creation of layout and graphic form of the portal, as well as its improvement and change over the use of such a web portal is in the definition of a copyrightable work as provided in 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.

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

Copyright law, case I C 238/06

June 15th, 2009, Tomasz Rychlicki

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 District Court in Tarnów in its judgment of 20 December 2007 case file I C 238/06 held that 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 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, “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“.