This is the continuation of a story decribed in “Trade mark law, case VI SA/Wa 2284/08“. The Supreme Administrative Court in its judgment of 10 August 2010 case file II GSK 746/09 dismissed the cassation complaint brought by Zygmunt Piotrowski. The SAC held inter alia that the provisions of the TMA or the IPL do not provide in the course of the litigation proceedings lead by the Polish Patent Office, for the possibility to control the legality of the administrative proceedings that concerned the registration of a given trade mark. The legality of a decision granting the right of protection should be challenged in different proceedings.
Archive for: Polish Act on Authors Rights and Neighbouring Rights
Copyright law, case III CZP 1/10
July 24th, 2010, Tomasz RychlickiThe Supreme Court in its order of 13 July 2010 case file III CZP 1/10 held that operators of cable networks may initiate court’s proceedings with regard agreements on remuneration scales/tables concluded or to be concluded with the competent organization for collective management of copyright, that concerns rebroadcasting of copyrighted works on radio and television programs, only after the exhaustion of the proceedings before the Copyright Commission. The issue of the inadmissibility of the courts’ proceedings was very unclear lately bacuse there was divergent case law of the Supreme Court and legal comentators presented different opinions and views. See “Copyright law, case IV CSK 303/06” and “Copyright law, case III CZP 107/07“.
The Copyright Commission, with a composition of three persons, two of them designated by the parties from among the arbitrators and the third co-opted as referee by the other two, shall settle disputes concerning the application of the scales referred to in article 211 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631.
Art. 211
1. Cable network operators may rebroadcast on cable, works that are broadcasted on radio and television organization solely on the basis of an agreement with the competent organization for collective management of copyright.2. In case of any disputes regarding the conclusion of the agreement referred to in paragraph 1, the provisions of article 108(5) shall apply.
If one of the parties does not designate an arbitrator or if the arbitrators do not designate a referee, the arbitrator or referee in question shall be designated by the Ministry of Culture and National Heritage. The party that is not satisfied with the decision of the Copyright Commission may, within a period of 14 days of the notification of the said decision, bring a judicial action before the competent district court.
See also “Polish regulations on copyright” and “Polish case law on copyright“.
Copyright law, case I ACa 206/10
June 26th, 2010, Tomasz RychlickiPassa 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 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. 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), Journal of Laws (Dziennik Ustaw) No. 5, item 24, with later 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 refered 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“.
Tax law, case III SA/Wa 1823/09
May 17th, 2010, Tomasz RychlickiThe Director of Tax Control Office in Warsaw ruled that the amounts of cash referred to as a “license to exercise the media rights” that were received by Legia football club from the Polish Football Association (PZPN), should be subject to tax on goods and services. Legia argued that such an agreement is not a contract of sale of rights, but the license agreement. However, the Director has found that the PZPN was the sole owner of intangible (economic and non econimic) property rights to the Polish national championships. To be the sole owner of the rights to football matches, PZPN had to acquire these rights. Therefore, Legia had to transfer these rights in some way, and that included proper fee.
The Director referred to a series of court decisions and pointed out that the sports’ event, namely football match does not constitute a work under the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631. Legia as a football club does not take action on the creative nature. In the opinion of the Director it is not precluded that on the legal market may exists licensing agreements relating to intangible property, other than works defined in the ARNR.
Only article 43(1) pt 13 of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535, includes a reference to the ARNR.
Art. 43. 1. The following shall be exempted from the tax:
13) licensing or authorization to use a license, as well as assignment of the proprietary right within the meaning of the copyright law – in relation to computer programmes – free of charge, for educational facilities, referred to in paragraph 9.
That provision indicates the grant of the license or authorization to use copyright licenses and the transfer of property rights under copyright law (the ARNR). The absence of such references in other regulations means that the transfer of copyright may affect the rights of the author, or a sole owner of any intangible property, which does not have the characteristics of the copyrightable work. A similar situation will occur in the case of a license. Wherever there is no reference to copyright law (ARNR) it will also mean the license agreement for the use of intangible property other than the copyrightable work.
The Tax Office ruled that Legia transfered “media rights” to the PZPN, so the Association could fully manage of them, and so enter into an agreement concerning the disposition of such rights. The rate of the tax shall be 22% for such service.
The tax shall become chargeable upon the receipt of all or part of payment, though not later than upon the expiry of the due date specified in the contract or invoice – for the performance in the territory of the country of services referred to in article 27(4) pt 1 of the GSTA.
4. The provision of paragraph 3 shall apply to the following services:
1) sale of rights or granting of licenses or sublicenses, transfers and assignments of copyrights, patents, trademarks, letting joint trademarks or joint guarantee marks for use, or other related rights.
Legia did not agree with the decision of the Director of the Tax Control Office and filed a complaint to the administrative court. It was rejected by the Voivodeship Administrative Court in Warsaw in a judgment of 26 March 2010, case file III SA/Wa 1823/09.
Tax law, case I SA/Kr 60/10
April 7th, 2010, Tomasz RychlickiThe Polish company which provides advertising services that are based on placing advertising banners on Internet websites requested the Minister of Finance to issue an individual interpretation of tax law. The company rents websites from individuals and companies for remuneration. Banner ads are placed on rented websites by using a computer software owned by the company. The owners of rented websites were required at the start of cooperation only to do a single interference/change in the code in order to make space on their websites for ads placed by the Company. This moment was treated as a commitment by the parties to the lease agreement and such a website was subject to use and benefits/usufruct. The owners of websites were not required to render to the Company (or its customers) any other additional steps. The company receives payments from its advertisers/customers according to the agreement, i.e. periodicaly for example monthly or once after the ad campaign ended.
The company asked whether income from remuneration for the lease obtained by individuals (private persons) who were not doing any business activity in this field, must be considered to sources mentioned in article 10(1) pt 6 of the Polish Act on Personal Income Tax – PITA – (in Polish: ustawa o podatku dochodowym od osób fizycznych) of 26 July 1991, Journal of Laws (Dziennik Ustaw) No. 80, item 350, with later amendments.
Article 10.
1. The sources of revenues shall include:
6) letting, subletting, lease, sublease and similar contracts, including also lease, sublease of special sectors of agricultural production and agricultural undertakings or parts thereof for non-agricultural purposes or for running special sectors of agricultural production, with the exception of assets used for commercial activities;
The company wanted to know whether it should be also acting as withholding agent, who is obliged to collect withholding income tax. The company argued that according to article 10(1) pt 6 and 44(1) pt 2 of the PITA it is not its duty. The Director of the Tax Chamber, acting under the authority of the Minister of Finance, held the position of the Company to be invalid. The Director and the Minister of Finance held that every time there was a service contract concluded between the company and the owners of websites and not the lease agreement, because the owner should be regarded as a person cooperating with the Company based on the fact that they have been required to comply with personal activities, i.e. one-time intervention in the code of a website, so that ads can appear on their website. Their revenues shall be defined as in article 10(1) pt 1 of the PITA.
Article 10.
1. The sources of revenues shall include:
1) service relationship, employment relationship, including cooperative employment relationship, farming or other agricultural production cooperative, homework, retirement or disability pension;
The company appealed. The Voivodeship Administrative Court (VAC) in Kraków in its judgment of 5 March 2010 case file I SA/Kr 60/10 held that a website is not either the tangible object/property or the right. It cannot therefore be subject to a lease within the meaning of the Polish Civil Code. However, according to the principle of contractual freedom, as the company correctly pointed out, it would be acceptable to conclude the so-called unnamed contract, which would be similar to the standard lease contract as provided by the regulations included in the Civil Code. The changes made in HTML code were just the technical operation.
See also “Tax law, case ILPB2/415-679/08-2/AJ“
