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Duties of social networking sites, case I A Ca 1202/09

March 3rd, 2010, Tomasz Rychlicki

Nasza-Klasa.pl website is a very popular Polish social networking service bringing together classmates. It provides its users with a possibility to contact and search for old friends. In 2008, an unknown person created an account for the name of Dariusz B., The fake profile included his personal data: name, place of residence, phone number, age and images. This account was set without the knowledge and the consent of Dariusz B. Many offensive comments were sent from this fake account to other users of the portal. These comments provoked negative emotions and responses from its recipients. Dariusz B. and his wife, tried to apologize to every person they met. Dariusz B. was also forced to change his phone number, and met with harsh comments from friends, and especially from the strangers. Maria B. – wife of Dariusz B. contacted Nasza-Klasa.pl by e-mails with the request to remove or to block the fake account. When it did not bring any results, they brought a lawsuit against Nasza-Klasa.pl.

Nasza-Klasa.pl was found responsible by both the District and the Apellate courts because it has not removed, or at least not immediately blocked the fake account, created in the name of Dariusz B., thereby making violations of his personal interests possible.

The Appellate Court in Wrocław in a judgment of 15 January 2010, case file I A Ca 1202/09, DOC file, ruled that nature of the infringement performed by Nasza-Klasa.pl was to allow a third party to encroach on personal rights of Dariusz B., by not fulfilling its obligations under the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usłóg droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended.

Article 14
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.

2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.

3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

Nasza-Klasa.pl did not immediately block, and then delete the questioned fake account. Therefore, it forced Dariusz B. to bear a humiliating behavior caused by another person, which in consequence violated his serenity, good mood, sense of personal dignity, i.e. his personal interests.

Poland: football fans play with lawyers

February 14th, 2010, Tomasz Rychlicki

As polite fans would probably say, the condition of Polish football is at least “debatable”, and others might use more crude words. The corruption and inefficient management of the Polish national football leagues are the tip of the Iceberg. This situation causes frustration of many people who try to blame the Polish Football Association (PZPN) for all their miseries. Some of these people decided to take matters into their own hands. They formed the Association of Defenders and Supporters of the Polish Football. They registered koniecpzpn.pl (end of Polish Football Association) as an Internet domain name and started to host a website with critical publications on PZPN under that domain. One didn’t need to wait too long before lawyers representing the Polish Football Association entered “the game”. New players acting on behalf of the Polish Football Association requested the court to issue a preliminary injunction in order to secure the case for the future action for trade mark protection and for the protection of personal rights.

The District Court in Lódż, I Civil Division, in its order of 14 January 2010, case file Ico 203/09, decided to grant the injunction and ordered the prohibition of placing at koniecpzpn.pl website the following trade marks owned by the PZPN: R-142616, R-170024, R-188961 i R-188962, the Court also ordered a block on the access to the content of the website available under www.koniecpzpn.pl domain name. The Court set the PZPN a two-week deadline for lodging the petition instituting proceedings for trade mark protection and the protection of personal rights under the pain of withdrawing the injunction in case no lawsuit was filed by that date.

See also my post entitled “Polish case law on domain names“.

Who is an Internet troll?

February 9th, 2010, Tomasz Rychlicki

Since a couple of years he is a very controversial figure of the Polish Internet and he also has become the cause of two interesting judgments which I am going to report. Arnold Buzdygan appeared on different Polish newsgroups, where he wrotre, inter alia, on topics such as copyright, sexology, psychology and politics. His style of writing was, at least, very controversial. Due to the vulgarity of some of his statements (he claimed that such actions were performed by his followers who allegedly used his name), offers to make a bet and announcements of lawsuits and threats of beatings, a part of the Usenet community defined these behaviors as trolling and such informations was posted in the Polish Wikipedia’s entry devoted to Buzdygan’s persona. Arnold Buzdygan decided to sue.

In the petition for libel filed against the Association Wikimedia Poland and Agnieszka K., he demanded an order to remove the existing contents of the article Arnold Buzdygan in both English and Polish-language versions of Wikipedia, and to put the apology instead of these entries, and to block the possibility of future edition of the questioned article, He also requested the Court to order the Association Wikimedia Poland to pay him the compensation of moral injury and the costs of the process in the sum of 100000 PLN.

In the response to a petition, the Association of Wikimedia Poland requested the Court to dismiss the claim, pointing that such charges cannot be brought against it because of the lack of the so-called “passive legitimacy”. Wikimedia Poland stated that neither the Association itself, or persons acting on its behalf are not engaged in editing of the article on Arnold Buzdygan, Wikimedia Poland argued that it is not a database administrator of Wikipedia or administrator of the servers on which the information is stored, so it would not be possible to remove or permanent blocking of such entries.

The District Court in Wrocław dismissed the suit in judgment of 8 June 2009, case file I C 802/07. Buzdygan appealed, and his petition was rejected by the Appellate Court in Wrocław in a judgment of 17 November 2009, case file I ACa 949/09, published in Orzecznictwo Apelacji Wrocławskiej, Biuletyn Sądu Apelacyjnego we Wrocławiu, No 1 (13), p. 5, Year MMX. The court ruled that the statements published in the disputed article and the mention of trolling do not infringe on Buzdygan’s personal rights. Descriptions of Buzdygan’s activity on different forums, though they may have a pejorative connotation, were the evaluation of the expression of views issued by Arnold Buzdygan, not the description of himself. The wording that was challenged by Buzdygan does not refer to his person, but it concerned the way of formulation of his speech in a public discussion, and the measure of negative evaluation did not exceed the permissible limit.

An active participant of online forums, being a well-known and recognizable in such community is, in this sense, a “public personality”. As a public person, participating in discussions, one agrees and must reckon with the fact that his or her opinions and statements will be subjected to criticism by other users, sometimes very radically and one has to demonstrate greater tolerance and even resistance to unfavourable and unflattering opinions, and even violent attacks. The boundaries of acceptable criticism are wider in fact, than in the case of persons not participating in such discussions. The evidence proceedings during the hearings has shown that Buzdygan was and is very active participant in online forums, and he is a known figure. By applying the test of the higher degree of tolerance for unflattering opinions, the Court found that the wording of the Wikipedia entry devoted to Arnold Buzdygan did not exceed the agreed and acceptable standard.

See also my post entitled “Polish court rules on the location of the Internet“.

Athletics Associations can make the images of the members of their national representation available to sponsors

January 11th, 2010, Magdalena Gad

Such conclusion stems from the recent judgment of the Polish Supreme Court (SC) of 16 November 2009, case file I CSK 160/09, in which the Court 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 later 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 later amendments, which was relied on by TP S.A. and PZPN in their argumentation. Under article 33(1) of the AQS:

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.

Administrative, civil and criminal proceedings in trade mark cases in Poland

December 22nd, 2009, Tomasz Rychlicki

I. Sources of Trade mark Law in Poland
The main sources of binding laws in the Republic of Poland are the Constitution of 2 April 1997, acts passed by the Parliament, ratified international treaties and regulations issued, for example, by the Prime Minister or the Council of Ministers – Polish government. Regulations are issued for the purpose of implementation of acts. The main legal acts on trade mark protection in the Republic of Poland are the following.

I.A. Substantive law

The old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with later amendments.
Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, 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.
Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with later amendments

I.B. Procedural law

Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.
Act on proceedings before administrative courts – PBAC – (in Polish:Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with later amendments.
Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No 43, item 296, with later amendments
Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments.
Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments,

I.C. EU law
Since 1 May 2004 which was the accession day to the EU, the Republic of Poland has been bound by all aquis communitaire including the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (CTMR). The CTMR is a part of the Polish Legal system and is directly aplicable by Polish Courts, especially by the Court for the Community Trade Marks and Community Designs which is located in Warsaw (in Polish: Sad Okregowy w Warszawie Wydzial XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych).

II. Different routes, different proceedings
The right of protection for a sign being capable to be registered as a trade mark is granted by the Patent Office of the Republic of Poland (PPO). Trade mark holders in the Republic of Poland may protect their rights in civil and criminal proceedings. Moreover, they may also use the procedures before customs authorities.

The Republic of Poland is not a common law country and the courts are not bound by decisions of other courts. However Polish judges tend to widely recognise the decisions and verdicts of the Polish Courts of Appeal and the Polish Supreme Court. Only resolutions of the Supreme Court that are decided as a legal principle are universally binding. The decisions of foreign bodies such as the General Court and Court of Justice of EU may be recognised only as so-called persuasive precedents.

II. A. Administrative proceedings in trade mark cases
The Patent Office of the Republic of Poland is a central government agency responsible inter alia for receiving and examination of applications seeking protection for trade marks and deciding in matters related to granting rights of protection trade marks (decisions with regard to processing of national and International trade mark applications, decisions on the invalidation and the lapse of the right of protection for a trade mark etc.). The provisions of the Code of Administrative Proceedings shall apply accordingly to litigation procedure before the Patent Office in cases not regulated by the IPL. Decisions made or orders issued by the PPO are liable to complaint lodged to the Voivodeship Administrative Court (VAC) in Warsaw. Judgments made by the VAC may be a subject of a cassation complaint filed before the Supreme Administrative Court (SAC).

II. B. Civil proceedings in trade mark cases
Trade mark infringement actions are brought before a District Court. There are no specific courts which have exclusive jurisdiction for resolving trade mark disputes, except the Court for Community Trade Marks and Community Designs which is strictly focused on the legal issues related to CTMs.

The Law on Industrial Property provides that a trademark owner’s rights will be deemed to have been infringed where there has been unlawful use of the mark in the course of trade, including unauthorized use of a trademark by a licensee and sublicensee. The remedies available to the trademark owner are as follows:

cessation of the infringement,
surrender of any unlawfully obtained profits,
compensatory damages in accordance with the relevant principles of the Civil Code or payment of a lump sum equivalent to a licence fee, or any other remuneration, which would have been due if the infringer had been authorized by the right holder to use the trademark. In this case, the trademark owner is obliged to prove that an intentional infringement of its rights has taken place,
announcement to the public of a verdict of the court (upon the request of a trade mark owner) as a whole or in part, or publication of information regarding the verdict,
a court order that the infringer (upon its own request, in case of unintentional infringement) to pay the relevant sum to the benefit of the trade mark owner if the cessation of infringement or forfeiture of the goods held by the infringer (means of manufacturing, materials) would be excessive, and the above-mentioned sum to be paid would fulfil the right holder’s interest.

The following cases, in particular, are also decided in civil law proceedings in accordance with the general principles of law:

for ascertainment of the authorship of an inventive project,
for ascertainment of the right to a patent, a right of protection or a right in registration,
for remuneration for the exploitation of an inventive project,
for remuneration for the exploitation of an invention, a utility model or a topography for state purposes,
for compensation for the transfer to the State Treasury of a right to a patent for a secret invention or to a right of protection for a secret utility model, a right of protection or a right in registration,
for infringement of a patent, a supplementary protection right, a right of protection or a right in registration,
for ascertainment of the right to exploit an invention, a utility model or an industrial design in the cases referred to in Articles 71 and 75 of the IPL,
for ascertainment of the right to use, in a local-scale activity, a mark registered on behalf of a third party as a trademark,
for ascertainment of the right to use a geographical indication,
for ascertainment of the loss of the right to use a geographical indication,
for the transfer of a patent, a right of protection for a utility model or a right in registration of an industrial design or a topography obtained by a person not entitled thereto,
for the transfer of a right of protection for a trad emark in the case referred to in Article 161 of the IPL.

II. C. Criminal proceedings in trade mark cases
The IPL defines counterfeit trademarks as identical trademarks illegally used or trade marks which in the course of trade can not be distinguished from the trade marks registered for the goods covered by the right of protection. The party aggrieved by the infringement has to commence a criminal action. Only after the filing of the motion can the proceedings be started and continued ex officio. The sole exception is when a person committing the crime in respect of a registered trade mark obtains permanent profits from its criminal activity or commits acts resulting in the turnover of counterfeit goods bearing the trade mark, which are of significant value. In such case the infringer is subject to more serious criminal penalties and proceedings will be started ex officio.

II. D. Custom seizures
Customs law, in addition to civil and criminal law, is the third administrative regime of protection for trade mark rights. Provisions of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property are directly aplicable on the territory of the Republic of Poland. The application for action shall be submitted to the Polish Customs Chamber seated at Modlińska 4 Street, 03-216 Warsaw.

II. E. ADR in trade mark cases
Where a domain name including a trade mark has been registered by an unauthorized third party, the mark owner can use mediation, alternative dispute resolution (ADR) proceedings or civil court action to obtain the cancellation or transfer of such domain. However, following a recent judgement of the Polish Competition and Consumer Protection Court of 26 December 2006, case act signature XVII AmC 170/05, ADR is unlikely to succeed if the disputed domain name is registered in the name of a natural person.

Plagiarist pays

December 11th, 2009, Magdalena Gad

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 later amendments.

Article 79
1. The entitled person whose author’s economic rights have been infringed, may request from a person who infringed these rights:
1) to put an end to the infringement,
2) to remove the results of the infringement;
3) to undo the damages:
a) based on general principles or
b) by payment of a sum of money equal to twice, and if the infringement is culpable – 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,
4) to return benefits received.

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).

Polish case law on copyright

December 9th, 2009, Tomasz Rychlicki

Last update on February 4, 2010.

To begin with, I have to write about the less or more important translation problem. The main Polish “copyright” act is the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments. As you can see there is no “copyright” in the title of this act. Due to the fact that the Polish law originates from the Civil law and Roman law, it shares the concept of authors rights being intangible personal/moral and economic rights owned, in general, by the creator of a protected work (the author or co-authors – the holder). This is the concept of the so-called dualism of author’s rights, which originates from the French doctrine of author’s rights that was first introduced and developed by M. Henri Desbois. However, I am going to use the word “copyright” to describe all economic rights attributed to the author or the owner of a protected work (the holder). These economic rights include inter alia the right to copy a work, distribute, etc.

According to article 1 of the ARNR 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 (the work). The case-law and the Polish legal doctrine share the view that the immaterial work, under the copyright law should demonstrate all of the following characteristics:
- it must be the result of the activity of man, i.e. the creator of the work, where a manifestation of activity means every manifested result of action see: J. Barta, “Ustawa o prawie autorskim i prawach pokrewnych. Komentarz”. Dom Wydawniczy ABC Warszawa 2001 r., s. 68.
- it must be a manifestation of creative activity,
- it must have an individual character.

Underneath, I decided to present a short review of the Polish copyright case-law in which the Courts discussed issues such as the protected work’s definition and what should be a subject of the copyright protection under the Polish law. All judgments are presented in the chronological order. Just click on the link to find more about each case.

I. Interpretations of the “protected work” definition.
In a judgment of the Appellate Court in Warsaw of 29 June 2007, case file VI ACa 210/07, published in the electronic database Legalis, the Court reached the following conclusions:

Photographs that were taken when a movie was shoot do not need to be treated as derivative works of an audiovisual work (the movie).

In a judgment of the Appellate Court in Warsaw 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, the Court reached the following conclusions:

1. A trivial and simple language phrase being a short fragment of “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.

2. 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 (…).

3. 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.

In a 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 Court reached the following conclusions:

For the legal protection of the author’s work it does not matter how the infringer came into the possession of the work, or how the work arrived to him, in particular, it does not matter that the work, which is the subject of the infringement came to the infringer as unsolicited correspondence sent electronically, the so-called spam.

The protection is not only afforded to the well known creator, whose works are published in big numbers, but to anyone whose rights to a protected work have been infringed in any possible way, copyright law makes no distinctions in the field of protection depending on the value of the work and the recognition enjoyed by the author.

In a 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 Court reached the following conclusions:

The novelty requirement is not the essential feature of the creation process understood as an expression of human intellectual activity. The work within the meaning of article 1 of the Polish Act on Authors Rights and Neighbouring Rights, can be a compilation that is using publicly available data, provided that the choice of their segregation and the way of presentation indicates originality.

In a 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 Court reached the following conclusions:

The expression of human intellectual activity which lacks adequate individuating characteristics, ie. that it would distinguish it from other products of similar nature and purpose, cannot be regarded as a work that is a subject to copyright protection. The dependent copyright may arise if there already is – and simultaneously exists – the right to the “original/primary” work, which was creatively worked out by a person who claims the right to dependent copyright.

In Judgment of the Supreme Court of 13 January 2006, case file III CSK 40/05, published in electronic database LEX, under the no 176385, the Court reached the following conclusions:

The “creative” and “individual” character of a work entitled for copyright protection can of course be based on the arguments relating to the subjective relationship between the creator and his work (“personal imprint”, “characteristics of personality”), or the objective aspects, i.e. relating to the product of the human mind. In the case of the application of the second test, which must be considered in light of the views of doctrine as better justified, it is assumed that the result of intellectual effort cannot be routine, standard and typical.

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 Court reached the following conclusions:

The development of a grid of entries, and a way how to define the composition of difficult entries (lexemes/lemmas) are a manifestation of the creative activity of the authors of the Polish language dictionary within the meaning of article 1 of the Polish Act on Authors Rights and Neighbouring Rights.

Judgment of the Supreme Court – Civil Chamber of 26 September 2001, case file IV CKN 458/00, published in the electronic database Legalis, the Court reached the following conclusions:

Questions making up the so-called “question bank” that is used in the test driving exams are deemed as public materials within the meaning of article 4(2) of the Polish Act on Authors Rights and Neighbouring Rights and therefore they are not afforded the copyright protection.

In a judgment of the Supreme Administrative Court of 30 June 1999, case file I SA/Lu 408/98, unpublished, the Court reached the following conclusions:

The result of creative activity, original one, characterized by individuality is the protected work. The result of a work which is determined by a described object or phenomenon, complex functions or goals, which is one of the results originating from the possible options that could be reached/solved by people (specialists) making the same task, is not the protected work. The copyright protection does not extend also to creative process, creative method or technique used in creating the work.

In a 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 Court reached the following conclusions:

If the performance of the duties that are originating from the employment relationship has to rely on the creative activity of an employee then it depends on the will of the parties to whom the author’s economic rights will be attributed. If the ownership of these rights is indefinable in the employment contract it means that within the limits of the employment contract and consistent intention of the parties, the author’s economic rights to these works are acquired by the employer in the moment of their acceptance (article 12(1) f the Polish Act on Authors Rights and Neighbouring Rights).

In a judgment of the Appellate Court in Warsaw of 5 July 1995, case file I ACr 453/95, unpublished, the Court reached the following conclusions:

On the grounds of the copyright law one has to oppose the actions of a creative nature against the technical operation and actions. The result of the latter is verifiable and repeatable, and its accomplishment only requires specific knowledge and efficiency. It is possible to predict a specific result of such actions. The feature of creativity, and thus the work itself, is the individual recognition and uniqueness of the accomplished result, in other words, the objective novelty, originality, autonomous creation, the creator’s personality projection as reflected in the work, whose effect is unpredictable, as the final result of the creative work (at least some elements).

In a judgment of the Supreme Administrative Court of 13 October 2005, case file FSK 2253/04, published in electronic database LEX, under the no 173097, the Court reached the following conclusions:

Whether a given subject is deemed as a work as defined under the copyright law is not determined by the will of the contract’s parties, but by the findings of facts. Created computer programs cannot be considered as copyrighted works, if the activities of their creator do not have the characteristics of originality and individuality.

In Judgment of the Supreme Court of 8 November 1932, case file II. 1K. 1092/32, published in Zb. Orz. 1933/I poz. 7., the Court reached the following conclusions:

A collection of posters or advertisements, calendars, catalogues, railway timetables, cookbooks, patterns, forms – may be subject to copyright law, if the form of their design, layout or explanations have independent and individual character.

I was wrong, domain names, case X GC 1245/03

October 6th, 2009, Tomasz Rychlicki

Well, as I wrote in my previous post – errare humanum est. My good friend Marcin Sochacki reminded me that there is an earlier judgment of the Polish court regarding the cybersquatting issue. It is a judgment of the District Court in Łódź, X Commercial Division of 22 June 2004, case file X GC 1245/03, Microsoft versus Robert Rudecki, it was decided in absentia. The case concerned microsoft.pl and microsoft.com.pl domain names. Unfortunately, I do not have an access to the text of this decision.

See also my post entitled “Polish case law on domain names“.

Apparently, anything can be a copyrightable work of art

June 15th, 2009, Magdalena Gad

Such a conclusion stems from the sentence of the District Court (DC) in Tarnow of 20 December 2007 in re: Bochnia Independence Half-Marathon, case act signature I C 238/06.

Once upon a time… 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 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 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments, “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.

Categories: Polish Act on Authors Rights and Neighbouring Rights | Polish District Court | Polish courts | Polish law | copyright law.

“Piracy” in Poland

December 22nd, 2008, Tomasz Rychlicki

By the term “piracy” I do not mean “an offense against humanity” as defined in U.S. v. Furlong, 18 U.S. 184, 5 L. Ed. 64 (1820) or that “the crime of piracy comprehends an act upon the high seas” (61 Am Jur 2d Piracy § 8). Although, I am being aware of the Oxford English Dictionary definitions such as “1603 T. Dekker Wonderfull Yeare sig. A4, Banish these Word-pirates (you sacred mistresses of learning) into the gulfe of Barbarisme” or “1668 J. Hancock Brooks’ String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies” or “1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates” or even “1706 D. Defoe Jure Divino Pref. p. xxvii, Gentlemen-Booksellers that threatned to Pyrate it, as they call it, viz. reprint it, and sell it for half a Crown”.

Anyway, according to the article which is available at onet.pl website, in Polish, the District Court in Koszalin has sentenced Łukasz D. – a former student of the Koszalin University of Technology (Politechnika Koszalińska) for a half year of imprisonment for computer “piracy”. The judgment was suspended for two years. The court found Łukasz D. guilty of the theft of 49 programs (of a total value of 180 709,66 PLN). Łukasz D. could even face 10 years in prison, but the court took into account his attitude during the investigation, and mitigated the sentence. The mitigation was also requested by the prosecutor in his final speech.

The case of 19 students from Koszalin who were involved in copyright infringement in P2P networks was widely publicized in Poland because the Police, Customs officers and private investigators from the Polish Society of the Phonographic Industry did not inform the vice chancellor of the Koszalin University of Technology (for my US English readers – the president) about their action which took place in university’s dorms. Academia authorities have deemed such operation as violation of the autonomy of universities and challenged the search action (which was performed without a proper search warrant, just on the basis of an official legitimacy of the Police) before the Public Prosecutor’s office. The Police search action was also officially condemned by the Conference of Rectors of Academic Schools in Poland and students organized pickets at the center of Koszalin. However, the Public Prosecutor’s office considered the complaint as unfounded and approved the dorms’ search.