Archive for: Art. 20¹ ARNR

Consumer protection, case XVII Amc 113/11

December 29th, 2011, Tomasz Rychlicki

The provision of the Rules of the Municipal Public Library in Słupsk stated that the Library may allow for reproductions or digital reproductions of one publishing volume sheet, which is approx. 22 pages of A4 format, of any documents protected by copyright law that are in the collection of the Library. However, such rules are contrary to the provisions of Article 23 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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.

Section 3
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

The Polish Court of Competition and Consumer Protection in its judgment of 9 December 2011 case file XVII AmC 113/11 held that such rule is prohibited and deemed as a wrongful contractual provision, as defined in the Article 3851 § 1 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

Article 3851. § 1. Provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). This shall not relate to the provisions which specify basic performances of the parties, including the price and remuneration if determined explicitly.
§ 2. Where the provision referred to in paragraph 1 is not binding upon the consumer, the parties shall be bound by the remaining provisions of the contract.
§ 3. The provisions not agreed individually shall be such provisions of the contract over which the consumer had no actual influence. It shall concern, in particular, the provisions of the contract taken over from the model form of contract offered to a consumer by a contracting party.
§ 4. The burden of evidence to prove that the provision has been agreed individually shall be borne by the party who claims so.

The Court held that the Library cannot decide on limits of copying of any of the library collections. Copying books without limitation of the maximum number of pages is legally permissible. The provisions of the ARNR do not indicate any limits. Such a judgment come as no surprise, because every person who is in possession of any reprographic devices and conducts economic activities within the scope of reproduction of works for the personal use of third parties, is according to the provisons of article 201 of the ARNR obliged to pay, through a Collection Society, fees at up to 3% of proceeds generated from such activities, to authors and publishers, unless the reproduction is done on the basis of a contract signed with a rightholder. Such fees are paid to authors and publishers in equal parts.