Polish IP & IT law » Art. 1 ARNR

Archive for: Art. 1 ARNR

Polish case law on taxes, case II FSK 1182/08 – computer software is not literary work

February 4th, 2010, Tomasz Rychlicki

A Polish company was purchasing rights to use of computer software from companies established in Ireland. The company has paid royalties to non-resident as defined in article 3 of the Polish Act of 15 February 1992 on legal persons’ income tax – LPIT (in Polish: Ustawa o podatku dochodowym od osób prawnych), consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654, with subsequent amendments

Art. 3. 1. Taxpayers, if their seat or head office is in the territory of the Republic of Poland, shall be liable to pay tax on the entirety of their income regardless of where they have been generated.
2. Taxapyers who do not have a seat or head office in the territory of the Republic of Poland, shall be liable to pay tax only on income generated in the territory of the Republic of Poland.

According to the Polish company, the payment of remuneration to a foreign contracting party for the use of computer software is not royalty and it is not subject to income tax in Poland. Accordingly, the Polish company is not obliged to pay the tax under article 21(1) of the LPIT

Art. 21. 1. Income tax on revenues derived in the territory of the Republic of Poland by taxpayers, referred to in Article 3.2:
1) from interest, from copyright or related rights, from rights to inventions, trademarks and ornamental designs, including also from selling those rights, from fees for disclosing the secrets of a technique or a production process, for the use or the right to use industrial, commercial or scientific equipment, including vehicles, and for information related to the experience acquired in industry, commerce or science (know-how);

2) from charges for services in the area of performances, entertainment or sports, performed by natural persons domiciled abroad, and organized through natural persons or legal persons conducting commercial activities related to artistic, entertainment or sport events in the territory of the Republic of Poland;
(…)

2. The provisions of paragraph 1 shall apply with account being taken of double taxation avoidance agreements, to which the Republic of Poland is a party.

and the Polish company is not obliged to collect lump income tax as defined in article 26(1) of the LPIT

Legal persons and unincorporated organizational entities and natural persons operating as entrepreneurs, who pay out the amounts due under titles specified in Article 21.1 and in Article 22, shall be obliged, as withholding agents, to collect, subject to paragraph 2, lump income tax on those payments as at the date thereof. However, application of the tax rate arising from a relevant agreement on avoidance of double taxation or waiving tax collection in accordance with such agreement is possible providing the place of residence of the taxpayer has been documented for tax purposes by a certificate (certificate of residence) issued by a competent tax administration authority.

The company asked the Polish Minister of Finance to issue the interpretation on the question whether if it pays to foreign contracting parties the fee for the right to use the software, is it obliged to collect a lump income tax, in accordance with article 12 of the Agreement of 13 November 1995 between the Government of the Polish Republic and the Government of Ireland on avoidance of double taxation and prevent tax evasion on income tax, Journal of Laws (Dziennik Ustaw) of 2000, No. 53 item. 650.

In the order issues of 2 October 2007, the Minister of Finance did not agree with the aforementioned statement of the Polish company. By its decision of 21 October 2007, the Minister refused to annul the order of 2 October 2007. According to the Minister of Finance, international copyright agreements and treaties such as the Berne Convention and the TRIPS include the concept of computer programs being literary works which, in conqequence, allows to extend this rule to all norms/regulations of international law, including the provisions of article. 12, paragraph. 3a of the Agreement.

In the complaint brought before Voivodeship Administrative Court (VAC) in Warsaw, the company, requested the Court to annul the decision of the Minister of Finance because it was taken based on the misinterpretation of article 12 of the Agreement. In support of the complaint the Company claimed that the royalties associated with the purchase of software should be taxed in accordance with article 7, paragraph. 1 of the Agreement – only in the State where the entity obtaining such income as “business profits” is seated.

The VAC in a judgment of 4 April 2008, case file III SA/Wa 2153/07, agreed with the interpretation provided by the Polish company and annuled both the order and the decision. The Minister of Finance brought a cassation complaint to the Polish Supreme Administrative Court (SAC).

The SAC in a judgment of 13 January 2010, case file II FSK 1182/08 held that a computer program is not a literary work. Such interpretation based on 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

Chapter 1
Subject Matter of Copyright
Art. 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).
2. The subject matter of copyright includes the following in particular:
(1) works expressed in words, mathematical symbols or graphic signs (literary, advertising, scientific and cartographic works and computer programs),

is the unacceptable extensive interpretation of tax law. For this reason, the SAC ruled that the payment for the use of computer software is not subject to taxation of royalties that shall be paid at the source of income. This interpretation was made in accordance with the Polish-Irish Agreement.

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.

What does the Court cite?

June 3rd, 2009, Tomasz Rychlicki

In judgment of 27 February 2009, case act signature V CSK 337/08, the Supreme Court of the Republic of Poland said that:

as a subject of copyright law have been considered (…) train timetables, cookbooks, patterns and forms (judgement of the Supreme Court of 8 November 1932, Zb OSN 1933, poz.7).

The problem is that judgment that was issued on 8 November 1932 does not exist. As Krzysztof Siewicz noted in his comment available at Piotr Waglowski’s website:

The same signature is given by Professors Barta and Markiewicz, in Commentary published by ABC (argument 26 on article 1, p. 75, Ed III).

Are these copyrighted works?

April 29th, 2009, Tomasz Rychlicki

The Polish Supreme Court has repeatedly indicated that the copyrighted can be any work, if – at least in its form – it shows some elements of creativity, even the minimum. See for instance a judgement of the Supreme Court of 31 March 1953, case file II C 834/52. As a subject of copyright law have been considered health and safety instructions – judgement of the Supreme Court of 23 July 1971, case file II CR 244/71, unpublished, instructions for operating a machine – judgement of the Supreme Court of 25 April 1969, case file I CR 76/69, published at OSNCP 1970, No. 1, item 15, train timetables, cookbooks, patterns and forms – judgement of the Supreme Court of 8 November 1932, Zb OSN 1933, poz.7.

One of the latest judgment of the Supreme Court of 27 February 2009, case file V CSK 337/08 tried to answer the question whether the specification of essential terms of the contract (also defined by the public procurement system) can be deemed as copyrighted work. There will be another post regarding this issue soon.

I dubt their intelligence

October 26th, 2008, Tomasz Rychlicki

According to the article available at onet.pl website, the Government of Donald Tusk has plagiarised a draft of the law which was prepared by the cabinet of Jarosław Kaczyński. Such claim was raised by members of Polish Parliament belonging to the opposition party called Prawo i Sprawiedliwość. The Polish portal site tvp.info has informed that PiS politicians do not exclude the possibility to claim damages in the court because of copyright infringement.

- We think about filing a complaint against Tusk’s government because it’s obvious plagiarism – says Joachim Brudziński, member of Parliament, representing PiS – It was very frequently that PO politicians appropriated our ideas, but this time, we are dealing with converting the project to the letter – he adds.

I added links and I will repeat it again for my English readers. 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, explicitly says.

Art. 4. The following shall not be protected by copyright:
1) normative texts and the drafts thereof,

Categories: Art. 1 ARNR | Polish Act on Authors Rights and Neighbouring Rights | Polish law | copyright law | copyright misuse.

Copyright registration

July 2nd, 2008, Tomasz Rychlicki

My last post has triggered some reponses so I’d like to clarify it, in a really short explanation. There is no requirement for copyright protection and enforcement in Poland. 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, tem 631 with later amendments, explicitly provides that:.

Art. 1, sec. 4
The creator is eligible for protection independently of compliance with formalities of any kind.

How does it work in the US? 17 U.S.C. § 411. Registration and infringement actions (emphasis mine):

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title (…)

What does it mean? It means that an effective enforcement of copyright rights is not so easy for the owner. One more time – it applies to any United States work.

Categories: Art. 1 ARNR | Polish Act on Authors Rights and Neighbouring Rights | Polish law | US law | copyright law.

May 21st, 2008, Tomasz Rychlicki

I do not want to brag about myself but I wrote once in the post entitled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?

Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.

Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.

Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.

T. Rychlicki, “Legal questions about illegal art“, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.

Police lies or manipulates?

October 29th, 2007, Tomasz Rychlicki

In a short press release published on 26 October 2007 in “Czas Świecia” (regional supplement to Gazeta Wyborcza newspaper) Marek Rydzewski, the spokesperson for Regional Police Headquater in Świecie, issued a statement while answering to a student’s question about legality and responsibility for photocopying books:

- Copying whole textbooks without a permission from persons who have rights to such work (usually those are authors or publishes) is prohibited.

False. I do not want to educate Polish Police but I think I owe my English readers short explanation about Polish copyright (I think the proper term should be Author’s right since Civil law system differs a lot from English and US approach).

Some voices appears that there are legal grounds to introduce restrictions of maximum amount of pages to be allowed to photocopy from one book (…). It seems that such statements are not justifiable. Rules established in art. 23 of the Act of Authors rights. (…) did not introduce any limits for the amount of photocopied text.

J. Barta, R. Markiewicz, Prawo autorskie i prawa pokrewne, Zakamycze 2004, p. 67.
Additionally, Mr Marek Rydzewski said that:

Also, the law does not allow for downloading books in electronic form from the Internet, except for those which are made available for such actions.

False. There is no rule in Polish law that “prohibits” downloading books from the Internet! For all of you who are interested in the original text of this short article here is a scanned file, JPG, 675 KB. I’ll see if they publish corrections. In passing I would like to write my short statement. Myabe it will sound strange for You but I think that photocopying a full book “kills” it somehow.