Archive for: quotation right

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 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. 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 VI ACa 461/11

November 3rd, 2011, Tomasz Rychlicki

Maryla Rodowicz is a well-known singer in Poland. She composed and recorded a song entitled “Marusia” about a Russian soldier-girl that was one of heroines from the book “Czterej pancerni i pies” written by Janusz Przymanowski. Mrs Rodowicz also created a video clip for this song. You can easily search and find it on YouTube. She used 3 minutes of the TV series entitled “Czterej pancerni i pies” where Marusia is portrayed by Polish actress Pola Raksa. Mrs Rodowicz paid 9.000 PLN of licensee fee to the producer Telewizja Polska S.A. A widow of the writer filed a copyright infringement suit claiming that this ridiculous video violated his personal and economic copyrights.

The Appellate Court in Warsaw in its judgment of 27 October 2011 case file VI ACa 461/11 had to answer the most important question, i.e. what was the nature of the video clip. Expert witnesses that were appointed by the agreement of both parties stated that the video is not an inspired work, because it directly incorporated some parts of the TV series. It wasn’t also a derivative work since it did not creatively transform the original work. Experts said that this was a work with borrowings, that copied fragments of someone else’s work where the right of quotation was exceeded. However, such use requires the consent of the copyright holder. The problem was that the producer was not able to provide the agreements from the time when the series was produced. The Court held, that in this case copyrights to the script are in the hands of creators, including Mr Przymanowski and his heirs. The Court ordered Maryla Rodowicz to pay 37.000 PLN of compensation.

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

Copyright law, case I ACa 787/11

December 1st, 2010, Tomasz Rychlicki

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

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

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

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

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

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

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

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

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 ACa 668/06

July 18th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 May 2007, case file I ACa 668/06, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2008, No 12, item 39, p. 48, held that a trivial and simple language phrase being a short fragment of popular “Baśka” song and not being a citation or borrowed quote, that was included in the disputed advertisement, and at most being an inspiration and a reference to the distant associations, does not justify the assumption of copyright infringement. The particular freedom concerns the advertising market. Indeed, such activity because of its short forms and the need for articulated skills must operate by abbreviations, references to familiar themes, characters and situations. An advertising is also a trade statement of informational nature, so it enjoys the right to freedom of expression and freedom of information. Restrictions of these rights may occur only to the extent necessary, by third party interests. While preserving the principle of non-transferability of author’s personal (moral) rights, it is permitted to waive of the exercise of these rights by the creator, to third parties, including entrepreneurs.

Copyright law, case I CK 232/04

July 11th, 2005, Tomasz Rychlicki

According to the judgement of the Polish Supreme Court of 23 November 2004 case file I CK 232/2004, it is possible to quote another’s work even in its entirety, if for the purposes described in Article 29 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.

Article 29
1. It shall be permissible to reproduce in the form of quotations, in works that constitute an integral whole, fragments of disclosed works or the entire contents of short works to the extent justified by explanation, critical analysis or teaching or by the laws of the creative genre concerned.

It is permissible so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work has been created. Under the said article one can quote a fragment of or an entire work of others already made public by referencing or reproducing such fragment/work and using it in one’s own work within the scope justified by explanation, critical analysis, teaching or the rights governing a given kind of creative activity. If these requirements are met the quotations are allowed without the author’s authorization.

On 26 April 2001, the District Court in Warsaw held in favor of the claimant Tomasz Sarnecki who filed a lawsuit against the weekly magazine “Polityka”, the Labor Cooperative in Warszawa and the editor in chief Jerzy B. for copyright infringement. The Court found the respondents liable (jointly and severally) to a fine of PLN 5.000 as a compensation for the willful infringement of the author’s moral rights, a fine of PLN 15,000 as a compensation for the author’s economic rights and obliged them to publish in their magazine a press declaration communicating to the public the fact that the claimant’s work was used without his permission.

On the cover of its 5 June 1999 issue, the “Polityka” magazine published a substantial fragment of the famous Solidarity Citizens’ Committee election poster from June 1989, authored by Tomasz Sarnecki. The poster, titled “High Noon, June 4, 1989” pictured a sheriff holding a paper sheet with the word “Election”, and a characteristic “Solidarność” logo pinned to his chest right above the sheriff’s star. It is worth to mention that the image of sheriff was taken from the movie “High noon” and depicted Gary Cooper. The “Polityka” magazine cover incorporated that very same poster, save for minor modifications. In particular, the respondent left out the word “Solidarność” placed above the head of the sheriff as well as the poster’s title (“High Noon, June 4, 1989”) replacing it with the wording “10 years of freedom. The history of the III Republic of Poland. Special report”. The cover referred to an article published in that issue of the magazine, commemorating the 10th anniversary of the first free democratic election in Poland. However, the editor’s office used the poster without it’s author’s knowledge or permission, not bothering even to indicate his authorship or to pay him any remuneration. This of course led to the author to file a suit in the court.

The court of first instance found, based on an expert’s opinion, that the cover of the “Polityka” magazine cannot be classified as an independent work inspired by the poster, because it incorporates the poster directly, using 90% of its plastic form without any – even the slightest – modifications. The designer of the cover did not modify the poster in any way and maintained the substance of the claimant’s work, hence infringing the latter’s moral right to sign the work with his name or pseudonym and his economic right to use the work, to dispose of it and to receive remuneration for the use of that work. Additionally, such infringement was willful, as the respondents did not exercise due professional care in identifying the author of the poster. The court found that Article 29 of the ARNR could not apply in the case at hand because the respondents’ behavior had exceeded the scope of fair use, as described in Article 34 of the ARNR.

Article 34
It shall be lawful to make use of works within the recognized limits of use on condition that the creator and the source are expressly mentioned. Their creator shall not be entitled to remuneration unless the law provides otherwise.

The above reasoning was subsequently adhered to by the Court of Appeals in Warsaw, which dismissed the respondents’ appeal on 18 September 2003. The court stated that the scope of quotation incorporated in the respondents’ work was so substantial that it was impossible to treat it as a permissible borrowing of a “snippet” of someone else’s work, as understood by article 29 of the ARNR and emphasized that the respondents did not even attempt to change the “atmosphere” of the poster in any way. The court found also that the fact that the poster was politically propagandist in nature was irrelevant and underlined that the commercial character of the use of it was illegal.

The respondents therefore filed a cassation claim with the Supreme Court, based in particular on an improper interpretation of the provisions of the ARNR. Amongst others, the respondents accused the Court of Appeals of having misinterpreted 1) Article 29 by wrongly assuming that it applies solely to cases where only a fragment of another’s work (as opposed to a whole work) is borrowed; 2) Article 29(1) in conjunction with Article 35, by wrongly assuming that for the purposes of setting the limits of fair use, the politically propagandist nature of the work is irrelevant and by disregarding the elements of this genre; 3) Articles 16(2), Article 34 and Article 78(1) – by wrongly applying those provisions and wrongly assuming, that the author’s moral rights had been infringed by not indicating the author’s personal information on the cover; 4) Article 17 and Article 79(1) by wrongly applying those articles and by wrongly assuming that the respondents infringed the author’s economic rights and 5) Articles 34 and 29(1) and (3) by not having applied those articles and by wrongly assuming that the claimant therefore has the right to remuneration. In conclusion the respondents requested that the sentence be changed and the lawsuit dismissed or alternatively that it be reversed and remanded.

Article 35
Lawful use shall not be prejudicial to the normal exploitation of the work or to the legitimate interests of the creator.

In turn, the Supreme Court upheld the Court of Appeals judgment. In particular it disagreed with the respondents’ opinion that the cover of their magazine constituted an independent work, inspired by another’s creative activity and incorporating that another’s work in the form of a quotation, as permitted under the fair use doctrine, rooted in the ARNR. The SC stated that a cover of a magazine can indeed constitute a work (be it an entirely independent one or inspired by someone else’s creative activity), but only on condition that such work, even though incorporating quotations, is primarily a result of one’s own intellectual efforts. In the Court’s opinion the cover of the “Polityka” magazine of 5 June 1999 could not constitute an independent creative work (resulting from the respondents’ own intellectual efforts) and incorporating a permissible quotation. The cover incorporated over 90% of the claimant’s work without any modifications, save for removing some of the subtitles and inserting others (such as the issue’s special report’s title). The respondents raised that their incorporation constituted a permissible quotation, justified by the rules governing this kind of creative activity. They also pointed out that the scope of the incorporation (90%) did not amount to an infringement of the author’s rights, since Article 29(1) explicitly allows to quote in works constituting an independent whole, not only fragments of disseminated works but also minor works in their entirety. According to the SC, incorporating such a vast majority of elements of the claimant’s poster could under no circumstances be qualified as a mere borrowing of snippets of the claimant’s work, because it is not the size of the quoted work but the purpose of the quotation coupled with the relation between the work and the quotation that it incorporates, that is of importance under Article 29. The Court stated that in certain justified cases it is permissible to quote even the entire work; however this is so only for as long as the quotation is incorporated for the purposes of explanation, critical analysis and teaching or is justified by the rules governing a given type of creative activity (genre). In any event, the quoted fragment (or even an entire work) must remain to one’s own intellectual input in such a proportion, so as to eliminate any doubts as to whether an independent work was created. And although there are no strictly defined rules describing the exact size of the permissible quotation, the Court held that by its nature, the quotation must be subordinate vis-à-vis the work that incorporates it. However, the issue of whether a particular quotation is permissible based on its size and scope will have to be analyzed on a case by case basis. In the case at hand, the Court found that the respondents’ own input into the cover was very limited and consisted of removing the subtitles (10% of the poster), minimizing the picture, and replacing the original slogan with the special report’s title. It is therefore impossible to justify the respondents’ theory that such “input” led to the creation of an entirely new and wholly independent work, merely inspired by the claimant’s poster.

The Supreme Court has also rejected the respondent’s allegation, that the use of the complainant’s work was justified by the rules of that particular genre (political propaganda). The respondents claimed that the cover of a magazine may consist of various graphic elements constituting pastiche, caricature or collage. And although the Court agreed with that statement, it nonetheless stressed that whenever speaking of a quotation of an artistic work (commonly used in pastiche, caricature and collage techniques), one must remember that all of the works so created must change the substance and the meaning of the work incorporated in them, so as to demonstrate their own view of the issues touched upon in the original work and not amount to a mere copycatting. Only then, will the permission of the author be unnecessary. Since the respondents’ cover did not meet those requirements, their reliance on Article 29(1) was unfounded and the use of the poster constituted a copyright infringement.

The Court also noted that even if the respondents were entitled to quote the entire work, without the author’s permission (as per Article 34) they were still under the duty to identify the author and the source of the work quoted, irrespective of whether such work was commonly recognized or not. Placing the author’s name and the source of the work quoted is a “conditio iuris” applicable to all works, not only those created by obscure authors but also to those whose authors are famous and widely recognized. The respondents’ excuse, that it was impossible to identify the author of the poster because he published his work anonymously also failed. The SC stated that it is the author’s moral right to publish his work anonymously, and if he chooses to do so this does not mean he authorizes others to claim authorship of that work. If it was indeed impossible to identify the author of the work, the respondents’ could have always placed information that the quotation comes from an anonymous author, and hence avail themselves of article 34 exception. The Courts has also stressed that the respondents had entirely disregarded the existence of article 8(3), which lists the entities authorized to represent authors who cannot be identified because they wished to remain anonymous3. The Court has also rejected the respondents’ argument, that the politically propagandist nature of the poster deprived it of the protection granted by the ARNR, since there is no such provision to this effect under the said Act. The Court added also, that the fact that the poster was a political propaganda, destined to be used as a source of pastiche, collage or caricature does not mean that its author cannot claim remuneration for such use (pursuant to proper licensing agreements).

Bearing in mind all of the above, the Supreme Court held, that both the court of I instance and the court of appeal rightly found the respondents liable for the infringement of the claimant’s moral and economic author’s rights and that the latter did indeed deserve the protection of the ARNR. Therefore, the Supreme Court upheld the lower courts’ decisions and ruled that it is possible to quote another’s work (even in its entirety) only if made for the purposes described in Article 29 of the ARNR and so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work was created.

The case unequivocally sets the limits of a permissible quotation, interpreting the law very strictly and leaving no place for maneuver for those who want to free ride on other’s creativity under the veil of freedom of press and information. It also raises the standard of due care for professionals, such as magazines, who now need to exercise the highest level of due care when referencing or reproducing works of others.

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