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Archive for: Polish Act on Authors Rights and Neighbouring Rights

Copyright law, case III CZP 61/11

November 19th, 2011, Tomasz Rychlicki

The Polish Supreme Court in its order of 26 October 2011 case file III CZP 61/11 held that manufacturers and importers of photocopiers, scanners and other similar reprographic equipment, that allow for the production of copies of the whole or part of the published copyrighted work, are obliged to provide to the competent organization for collective copyright management (collecting society), information and documents, that relate to all contracts for the sale of these devices.

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

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 ARNR.

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 P 18/09

October 14th, 2011, Tomasz Rychlicki

The Constitutional Tribunal of the Republic of Poland in its judgment of 11 October 2011 case file P 18/09 held that Collecting Societies acting on behalf of authors, performers, producers of phonograms and videograms and publishers, may demand from manufacturers of copiers and recorders all information and documents necessary for calculation of the amount of fees levied on them. The producers and importers of tape recorders, video recorders and other similar apparatus are obliged to pay these fees according to Article 20(1) of of 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.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.
ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The Association of Copyright Collective Administration for Authors of Scientific and Technical Works requested one of the Polish companies to provide information about copiers imported and sold in Poland. Every Collecting Society has the right to request such information based on the provisions of Article 105 of the ARNR.

Art. 105(1) The collective administration organization shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collective administration organizations claim competence in respect of one and the same work or performance.
2. In the course of its activity the collective administration organization may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

This request created legal uncertainty and the case ended before the courts. The Appellate Court in Wrocław had doubts whether such request violates trade secrets of a company, and there are any guarantees to protect against fraud. The Court noted that the protection of trade secrets is guaranteed by the freedom of economic activity. That freedom may be restricted only for reasons of important public interest. Meanwhile, the interest of collecting societies is not the public interest, but the sum of the partial interests of private authors, creators and publishers.

The Constitutional Tribunal ruled that fees charged by Collecting Societies are collected in order to protect the rights of creators, performers, producers of phonograms and videograms and publishers. This means that the restriction of freedom of economic activity was in accordance to the condition expressed in Article 31(3) of the Polish Constitution.

Article 31

Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

The Constitutional Tribunal held that in order to protect the rights of others, the legislature intervenes in the economic relations, that are based on the model of market economy in a democratic state, whose pillars are freedom of economic activity and private property. The Constitutional Tribunal held that Article 105(2) of the ARNR limits the freedom of economic activity, but it does not affect the principle of proportionality. The limitation of the freedom of economic activity serves to protect the interests and constitutional values such as the rights of creators, social conditions and economic foundations of a market economy. The limitations of economic activity are necessary to protect these values, and to avoid state interference in the sphere of access to modern reprographic equipment.

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

Copyright law, case II SA/Gd 529/10

October 10th, 2011, Tomasz Rychlicki

The Mayor of Gdańsk city was requested to disclose an architectural project of the building. The Mayor refused and explained that this request could not be executed because it concerns the copyrighted work. By issuing certified copies the Mayor creates new documents, that may be used in different situations. The applicant argued that he needs a copy, not a certified one. The case was dismissed the Voivode in its order of 25 May 2010 no. WI.I/EK/7111-121/10. The Voivode is the administration body that hears complaints against such decisions, and the applicant decided to bring his case before the court.

The Voivodeship Administrative Court in Gdańsk in its judgment of 26 January 2011 case file II SA/Gd 529/10 overturned both decisions. The Court held, that although the architectural project of a building is a work covered by copyright protection, according to the provisions of Article 33² of 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, it is permitted to use copyrighted works for the purposes of public security or for the purposes of administrative, court or legislative proceedings and any reports thereof.

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

Copyright law, case V CSK 373/10

August 5th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment case file V CSK 373/10 held that a court cannot prohibit rebroadcasting of TV programs, if it was a part of the activity of a cable television, even if rebroadcasting was made without the consent of the collecting society. If the parties argue about rates for rebroadcasting, the court shall appoint a witness expert, because the rates that are used by the collecting societies for rebroadcasting are not market rates by definition, because they were adopted by one organization.

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

Copyright law, case I OSK 1975/10

June 13th, 2011, Tomasz Rychlicki

The Minister of Infrastructure did not respond to the request of a Polish company for disclosure of public information in the form of directory of multiple choice questions for the initial qualification tests for categories C1, C1 + E, C, C + E of driving license. The company filed a complaint of failure to act. The Voivodeship Administrative Court in Warsaw in its order of 25 August 2010 case file II SAB/Wa 150/10 dismissed the complaint. The Company decided to file a cassation complaint.

The Supreme Administrative Court in its order of 21 December 2010 case file I OSK 1975/10 dismissed it. The Court supported the view, in which an official document was correctly distinguished from an official documentary material. While the official document will be public information, the documentary material will not has such status, because it lacks formality/officiality features (it was not used by the official body in a given case and it was not directed outside that body). The court held that a set of questions would be used to carry out undefined tests, therefore, such questions are undoubtedly abstract in nature and do not constitute an official document. In this case, the company had not requested the disclosure of a particular form of the test – a set of questions used in a particular exam, and the subject of the request was entire collection of materials (a series of questions). In the opinion of the court such materials do not constitute public information under the Article 1(1) of 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 1.1 Each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.
2. The provisions of the Act shall not breach the provisions of other acts defining different principles and the mode of access to the information being public information.

The Court noted that only when these questions are used in a particular case, i.e. they are arranged, and used in a specific set of questions designed to check the level of knowledge of applicants for categories C1, C1 + E, C, C + E, they lose their abstract characteristic and become public information, however, such situation did not occur in this case.

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

Copyright law, case II SAB/Łd 53/10

June 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 20 December 2010 case file II SAB/Łd 53/10 ruled that the fact that different authors create questions from different fields of medicine for the National Specialist Examination, and these questions are copyrightable works within the meaning of the Article 1(1) of the Polish Act on Authors Rights and Neighbouring Rights, does not exclude the possibility that the Authority could create, on the basis of these works, the examination test that will be used to carry out the National Specialist Examination.

Article 1(1). 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 (work).

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,

Therefore, the works used for the state examination are deemed as official documents and the unused questions which are known as the “pool of questions” are official documentary materials within the meaning of Article 4(2) of the ARNR.

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

Copyright law, case II CSK 527/10

June 6th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 25 May 2011 case file II CSK 527/10 held that a person who made some editorial changes of a scientific work that involved the removal of parts of dubious scientific value is entitled to claim the co-autorship of such a work. See also “Copyright law, case V CK 391/02“

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

Copyright law, case IV CSK 274/10

May 10th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 26 January 2011 case file IV CSK 274/10 held that creation of legal rules that are included in 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, and that concern copyright agreements, does not exclude the applicability of the provisions of the Civil Code, especially particular chapters of the CC. The conclusion of contracts other than these provided for in the ARNR, mainly the contract of transfer of copyrights (i.e. all economic rights that are primarily attributed to the creator) or the contract for the use of the work (licences), is not excluded if the specificity of copyright is also taken into account. There was also no reason to exclude – in principle – the possibility to establish the lease on copyright, of course, after the conditions set in Article 709 of the CC have been satisfied.

Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
§ 2. The rent may be stipulated in money or in performances of another kind. It may also be specified in terms of a fraction of the fruits.

Article 694. The provisions on lease shall apply respectively to tenancy with the observance of the provisions stated below.

Article 695. § 1. The tenancy concluded for a period longer than thirty years shall be deemed, after the lapse of that period, to be concluded for indefinite time.
§ 2. Repealed.

Article 696. The tenant shall exercise his right in accordance with the requirements of proper management and cannot change the designation of the object of tenancy without the consent of the landlord.

Article 697. The tenant shall be obliged to make repairs indispensable for maintaining the object of tenancy in a non-deteriorated condition.

Article 698. § 1. The tenant cannot, without the consent of the landlord, give the object of tenancy to a third party for gratuitous use nor for holding under a subtenancy.
§ 2. In the case of non-observance of the above obligation, the landlord may terminate the contract of tenancy without observing the time limit of the notice.

Article 699. If the time limit of the payment of the rent is not specified in the contract, the rent shall be payable after a time limit customarily accepted, and in the absence of such custom semiannually at the end of every period.

Article 700. If, as a result of circumstances for which the tenant is not liable and which do not pertain to him personally, the usual revenue from the object of tenancy is considerably reduced, the tenant may claim a reduction of the rent for the given economic period.

Article 701. The movable things covered by the statutory right of pledge vested in the landlord shall include the things used in the running of a farm or an enterprise if they are on the area of the object of tenancy.

Article 702. If it is stipulated in the contract that in addition to the rent the tenant shall have the obligation to pay taxes and bear other burdens connected with the ownership or the possession of the object of tenancy as well as to bear the costs of its insurance, the statutory right of pledge vested in the landlord shall also cover his claims to the tenant for the reimbursement of the sum paid by the landlord for the reasons specified above.

Article 703. If the tenant is in delay with the payment of the rent for at least two full periods of payment, and if the rent is payable annually, if he is in delay for more than three months, the landlord may terminate the contract of tenancy without observing the time limit for the notice. However, the landlord shall warn the tenant by setting him an additional time limit of three months for the payment of the rent in arrear.

Article 704. In the absence of a contract to the contrary, the contract of tenancy of agricultural land may be terminated one year in advance at the end of the year of tenancy, and another contract of tenancy, six months in advance before the lapse of the year of tenancy.

Article 705. After the termination of the tenancy, the tenant shall be obliged, in the absence of a contract to the contrary, to return the object of the tenancy in the condition in which it should be in accordance with the provisions on the exercise of tenancy.

Article 706. If, at the termination of the tenancy, the tenant of agricultural land leaves it sown according to his duty, he may claim the reimbursement of the outlays on those crops, where, contrary to the requirements of proper management, he did not receive the appropriate crops at the beginning of the tenancy.

Article 707. If the tenancy ends before the end of the tenancy year, the tenant shall be obliged to pay the rent in such proportion in which the fruits which he collected or could have collected bear to the fruits from the entire year of tenancy.

Article 708. The provisions of the present Section shall apply respectively where the person taking an agricultural immovable property for use and collection of fruits is not obliged to pay the rent but only to pay the taxes and to bear other burdens connected with the ownership or the possession of land.

Article 709. The provisions on the tenancy of things shall apply respectively to the lease of rights.

The lease would have to include at least one field of exploitation (the concept included in the Polish copyright law, where the owner has the right to dispose the use of a copyrighted work on different fields of use) and the associated possibility of obtaining benefits, for example, by allowing the lessee to display the copyrighted work for profits.

The Court ruled also that the exhibition of photographs can be a derivative work as defined in the Article 2(1) of the ARNR.

Art. 2.-1. Derived works made from the work of another, in particular translations, transformations and adaptations, shall be protected by copyright without prejudice to the rights in the original work.
2. The manner of disposal of the derived work and the use thereof shall be subject to the consent of the creator of the original work (dependent copyright), except where the economic rights in the original work have expired.
3. The creator of the original work may withdraw his consent if, in the course of the five years following its grant, the derived work has not been disclosed. Remuneration paid to the creator shall not be susceptible of repayment.
4. A work inspired by another’s work shall not be considered a derived work.
5. The name of the creator of the original work and the title thereof shall be mentioned on the copies of the derived work.

However, as in the case of other works, the final assessment depends on the outcome of the examination that was made in terms of statutory criteria for the work to be protected by copyright, taking into account that, while defining the derivatives, the basic prerequisite of creativity has to be taken into account.

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“.

Copyright law, case IV CSK 359/09

September 17th, 2010, Tomasz Rychlicki

The Polish company KREA sp. z o.o. prepared a label design for yoghurt packaging that was commissioned by Wojciech Jurkiewicz. The Company contacted a freelance graphic deisgner to create word-figurative trade mark, which was to be placed on this packaging. KREA acquired all copyrights. Wojciech Jurkiewicz filed for trade mark registration but the PPO refused to grant the right of protection. Mr Jurkiewicz was also sued by KREA and the District Court ordered the defendant to cease the copyright infringement of economic rights owned by KREA to the word-figurative trade mark JOGI by deisisting from using of the sign in any form in the course of economic activity and ordered Mr Jurkiewicz to pay 51.000 PLN. The Appelate Court changed the judgment only by reducing the amount awarded to 15.000 PLN.

Z-252222

KREA also filed a suit against OBORY sp. z o.o., claiming copyright infringement of its word trade mark JOGI. The Company argued that the binding force of the judgment against Mr Jurkiewicz extends to a conclusion that JOGI word is deemed as a copyrightable work.

R-217384

The Supreme Court in its judgment of 22 June 2010 case file IV CSK 359/09 held that only the dictum is the binding element of a judgment, not its motives, therefore, the previous judgment has no expanded legitimacy. It was not a reasonable argument that the earlier cited judgment in case against Wojciech Jurczyński would always be the official confirmation of the plaintiff’s copyright to a word sign. The idea for the word “JOGI” (which existed previously in the public domain) as a designation for drinking yoghurt, is nothing creative or original. The Court noted that the opinion that copyright law does not use the novelty condition in the objective sense, but in subjective terms, is dominating. The condition of work’s “originality” is satisfied if there subjectively exists a new product of the intellect. One may say about the self-creativity only if the created work was not previously known in the same form, and thus it manifests itself in an objectively tangible result of creativity. The approach presented by KREA, which lies almost on the presumption of fact that every product of human intellectual is a protected copyrightable work, without demonstrating of its creative elements, has no support in the ARNR and is too far reaching. In a wider perspective, such conclusion would be the risk of depreciation of the concept of creativity in general. In principle, a single word, not only these taken from everyday language, but also the unknown words or neologisms, do not have the characteristics of creativity. Only one-word titles, or slogans, may be exemption to the aforemtnioned rule when applied to specific situations, when they are characterized by a startling clarity and brilliance, make poetic of the whole work, are the “key” to understanding of such work. The Polish legal doctrine and case law have long since stopped using the term “pure art” and promoting the traditional cultural role, which the right had to serve. The concept of “copyright work” is recognized widely, with persistent tendency to mitigate the criteria governing the granting of copyright protection, such as creativity, originality and individuality. The evidence of such actions is presented in the protection of the products of which contain a small contribution to creative work, and characterized by even a small degree of originality and individuality. In this context, the concept of “boundary categories of works” is used and also – in principle – the possibility of granting copyright protection to small products of human activity that are designed for purely utilitarian and practical use, is not denied. The ARNR protects works created not only for artistic purposes and does not refuse the protection for works created solely for commercial (industrial, merchandising) purposes, but only in so far as the work has such characteristics that are required for any other copyrightable work. The utilitarian purpose of copyrightable works, created solely for the intended use in a certain way, is typical for the objects that are subject to industrial property rights, in particular industrial designs and trade marks In the case of the latter it most often applies to word-figurative trade marks. In Polish law it is permissible to accumulate of certain intangible property/econimic rights, including trademarks being also copyrightable works and industrial designs/copyrightable works.

In the opinion of the Supreme Court, the mere use of a word as a trade mark should not affect the possibility of its recognition as a copyrightable work, since the existence of such work cannot depend on its specific purpose. The way of using a given work does not decide on the statusu of its copyrightability. The word “JOGI” does not show originality, which could allow for an exception to the generally accepted principle that single words do not have creative characteristics. It has no autonomous characteristics of the copyrightable work, and it isn’t a copyrightable work because of someone “invented” a particular way of its use as a trade mark, or designation of a particular type of goods originating from a particular undertaking.

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

Copyright law, case X GC 74/08

August 23rd, 2010, Tomasz Rychlicki

Hasbro company filed copyright infringement suit against INTERKOBO Sp. z o.o., a Polish company that imports and distributes games, toys and sports articles, mainly from China, Hong-Kong and Taiwan. Hasbro claimed that Interkobo by acts of importation, advertising and selling of games such as “Colour Twist”, “Who is it?”, “Worldbusiness” infringes on Hasbro’s copyrights.

The District Court in Łódź in its judgment of 8 December 2009 case file X GC 74/08 based its findings on expert witness with regard to formal analysis of works in question as to whether games imported by Interkobo infringes on Hasbro’s rights. The Court agreed with the expert that the abstractly conceived rules of the game are ideas that cannot be copyrighted. The authorship of a game understood as a set of abstract rules by which the game is to take place cannot be granted. The court did not excluded the protection of such abstract rules of the game based on the general principles of the civil law, but acknowledged that it remains outside the subject matter of the case and did not provide further arguments in this regard.

The Court also took into account that Hasbro is a foreign company and according to provisions of Article 2(6) and Article 5(2) of the Berne Convention, the protection of its rights should be governed exclusively by the laws of the country where protection is claimed, i.e. 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.

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

Trade mark law, case II GSK 746/09

August 10th, 2010, Tomasz Rychlicki

This is the continuation of a story decribed in “Trade mark law, case VI SA/Wa 2284/08” that concerned HERITAGE FILMS trade mark. 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.

Heritage

The Court noted that Mr Piotrowski confused the concepts of “invalidation of the registration right” or “invalidation of right of protection for a trade mark” with the annulment of the decision on the granting of the right. There are different grounds for such decisions and other procedures on their issuance, but in case of the breach of the provisions listed in Article 29 of the Trade Marks Act, those conditions may overlap, and only in this case they might be raised in the opposition proceedings. Consequently, the invaliditon of the protection right, although identical in its consequences, cannot be identified with the institution of the annulment of the decision on the granting of the right of protection.

Copyright law, case III CZP 1/10

July 24th, 2010, Tomasz Rychlicki

The 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“.