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.