Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: e-access

Access to public information, case V Ca 454/07

July 30th, 2007, Tomasz Rychlicki

Sergiusz Pawłowicz who was also the leading programmer of Janosik project, went the same administrative proceedings as ISOC Poland. See “Access to public information, case OSK 600/04“. At the final stage the Supreme Administrative Court rejected Sergiusz’s complaint on the decision of the Voivodeship Administrative Court case file II SAB/Wr 72/02, recognizing that the proper course shall be a civil action.

Sergiusz filed a complaint requesting the civil court to order ZUS to disclose specification of KSI MAIL protocol being public information. The Regional Court in Warszawa in its judgment of 8 December 2006 case file XVI C942/04 ruled that publication of the protocol that is used by Płatnik software will not affect in any way the integrity of safety of data sent by this software. Therefore all arguments raised by ZUS with regard to data security were unfounded. The Court also held that ZUS did not prove that the protocol of KSI MAIL is protected by copyrights that belongs to Prokom Software S.A. or whether Prokom received any patent covering this protocol.

As for the argument that ZUS’s obligations regarding confidentiality of information about technologies used in Płatnik and its source code, which resulted from the agreement between ZUS and Prokom, the court held that according to the obligation to disclose public information included in article 13 of the Act on the Informatization of Activities Undertaken by Entities Fulfilling Public Tasks (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), the provision of the agreement as a ius dispositivum, may not impose negative consequences on Sergiusz.

The court also held that the use of the requested public information and legal interest that Sergiusz and its legal representative derrived from the social interest was beyond the scope of the whole dispute. Simply, there is no need to prove legal interest when requesting the access to public information.

ZUS filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 23 April 2007 case file V Ca 454/07 rejected it. The Court held that the court of first instance provided deep and proper analysis of binding legal norms and its judgment was correctly applied.

Polish Patent Office, case II SAB/Wa 99/06

November 25th, 2006, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 24 November 2006, case file II SAB/Wa 99/06, ruled that the public authorities or other bodies performing public functions, in particular the public offices and departments, are required to make public information available in accordance with provisions of article 4(1) point 1 of of the 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 later amendments.

Therefore, there was no doubt for the VAC that in the light of the aforementioned regulation, the Polish Patent Office is the entity obliged to follow the provisions of the API. However, it was also undisputed, that the rules and the procedure on the access to documents including trade mark applications are governed by the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments, served as the basis for the decision to refuse to grant a right of protection.. The provisions of the IPL will constitute lex specialis in relation to the API.

Access to public information, case OSK 600/04

September 12th, 2006, Tomasz Rychlicki

ISOC Poland requested the President of the Social Insurance Institution – ZUS – (in Polish: Zakład Ubezpieczeń Społecznych) to make available public information concerning technical specification of the KSI MAIL format, that is used in Płatnik software. Płatnik computer program is a free but not open source software to use (fill in and send) a statement of payment declarations to the Social Insurance Institution. It works only with MS Windows.

The President of ZUS ruled that the Polish Act of 13 October 1998 on the Social Insurance System, consolidated text published in Journal of Laws (Dziennik Ustaw) of 2007 No. 11, item 74 as amended, obliges payers of social insurance to prepare documents including inter alia protected data, for instance sensitive data concerning health, in the electronic format and to transmit of such documents from Płatnik to ZUS. These data are personal data protected by law. Making them available could result in significant disruption in the supply KSI MAIL system, exposing to a breach of professional secrecy of ZUS and undermine the statutory exclusivity of the software provided by ZUS. Regardless of the abovementioned arguments, ZUS stated that KSI MAIL module is subject to business confidentiality and trade secrets due to the greement conducted between ZUS and Prokom Software S.A. on the design and implementation of a comprehensive system for social security. The agreement obliged ZUS to keep confidential all information relating to the transferred technology and solutions contained in KSI MAIL. ZUS based its final decision on article 5 of the the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 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.
3. The access to public information on matters resolved before the state authorities, in particular in the administrative, criminal or civil proceedings cannot be limited, with the stipulation of it. 1 and 2, with respect to protection of the party’s interest, if the proceedings concern the public authorities or other entities performing public functions or persons performing public functions – in the scope of these functions or tasks.
4. The limitations of access to information on cases, defined in it. 3, do not breach the right to information on organisation and work of the bodies conducting proceedings, in particular on time, mode and place and the order of investigating cases.

ISOC filed a complaint before the Voivodeship Administrative Court in Warsaw. It emphasized that the technical specification of KSI MAIL is public information. Its publication broadens the possibility of fulfilling the duties of citizens who do not wish to invest in MS Windows. ISOC further argued that ZUS can not rely on contractual provisions, as it was contrary to the mandatory provisions of the API and that they are invalid. Also, ZUS made an erroneous interpretation of the law to rely on business secrets and trade secrets, because ISOC did not request the source code of the program, or other works protected by copyright or industrial property rights/patents.

The Voivodeship Administrative Court in its order of 30 January 2004 case file II SA 3732/03 held that this request concerns matters that are not subject to the administrative jurisdiction, but the civil courts which is in accordance with the provisions of article 22(1) of the API.

Article 22.
1. 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.
2. The entity, to which the exclusion of public information is related, has a legal interest in commencing as an accidental intervener on the defendant’s side.
3. The competent court for resolving the cases, defined in it. 1, is the district court with respect to the seat of the entity, which refused to make the public information available.

The Supreme Administrative Court in its judgment of 3 March 2004 case file OSK 600/04 stated that the cassation complaint is unfounded and declared that, the term “when quoting” as used in article 22(1) of the API, has such meaning that it is sufficient for the entity who posses requested information to invoke the mentioned in this provision object of protection, to exclude the possibility of control by an administrative court. The administrative court cannot control in this case the legality of the decision and investigate if the indicated condition actually occurred.