Archive for: Polish Act on Authors Rights and Neighbouring Rights

Copyright law, the allowed personal use

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.

Copyright law, case VI ACa 210/07

September 26th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 29 June 2007, case file VI ACa 210/07, published in the electronic database Legalis, held that photographs that were taken when a movie was shoot do not need to be treated as derivative works of an audiovisual work (the movie).

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

Collective interests of consumers, case DDK-14/2007

August 3rd, 2007, Tomasz Rychlicki

The President of the Office of Competition and Consumer Protection charged Vision Film Distribution and Warner Bros Poland of practices violating collective interests of consumers and unfair competition delicts. The results of this proceedings are included in decisions no. DDK-14/2007 of 25 May 2007 and decision no. DDK-5/2007 of 31 January 2007. Both companies were accused and fined for providing false information on copyright law on their movie products that were distributed on DVDs.

Access to public information, case V Ca 454/07

July 30th, 2007, Tomasz Rychlicki

Sergiusz Pawłowicz who was also the leading programmer of Janosik project, went the same administrative proceedings as the ISOC Poland. See “Access to public information, case OSK 600/04“. At the final stage the Supreme Administrative Court dismissed Sergiusz’s complaint on the decision of the Voivodeship Administrative Court case file II SAB/Wr 72/02, recognizing that the proper course shall be a civil action.

Sergiusz filed a complaint requesting the civil court to order ZUS to disclose specification of KSI MAIL protocol being public information. The Regional Court in Warszawa in its judgment of 8 December 2006 case file XVI C942/04 ruled that publication of the protocol that is used by Płatnik software will not affect in any way the integrity of safety of data sent by this software. Therefore all arguments raised by ZUS with regard to data security were unfounded. The Court also held that ZUS did not prove that the protocol of KSI MAIL is protected by copyrights that belongs to Prokom Software S.A. or whether Prokom received any patent covering this protocol. As for the argument that ZUS’s obligations regarding confidentiality of information about technologies used in Płatnik and its source code, which resulted from the agreement between ZUS and Prokom, the court held that according to the obligation to disclose public information as provided in the Article 13 of the Polish Act of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in Journal of Laws (Dziennik Ustaw) No 64, item 565 as amended, the provision of the agreement as a ius dispositivum, may not impose negative consequences on Sergiusz. The court also held that the use of the requested public information and legal interest that Sergiusz and its legal representative derrived from the social interest was beyond the scope of the whole dispute. Simply, there is no need to prove legal interest when requesting the access to public information.

ZUS filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 23 April 2007 case file V Ca 454/07 dismissed it. The Court held that the court of first instance provided deep and proper analysis of binding legal norms and its judgment was correctly applied.

Copyright law, case I ACa 668/06

July 18th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment 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, held that a trivial and simple language phrase being a short fragment of popular “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. 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. 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.

Copyright law, case VI ACa 1012/2005

April 22nd, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment 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, held that when it comes 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.

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

Copyright case, IV NSA 2238/01

March 29th, 2007, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 25 April 2002, case file IV NSA 2238/01, published in MoP 2002, No. 12, p. 532, has denided the Board of the Society of the Polish Architects the right of action in a case of the infringement on the integrity of the architectural design/project.

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

Copyright law, case IV CSK 303/06

March 24th, 2007, Tomasz Rychlicki

The Supreme Court in its judgment of 3 January 2007 case file IV CSK 303/06 ruled that the Copyright Commision should also resolve disputes relating to the conditions of agreement between a cable operator and the collecting society on the use of copyrighted works or performances. This conditions are inter alia the method of calculation and the amount of remuneration. The Court broadly interpreted the term “dispute about the conclusion of the agreement”. The SC held that the so-called inadmissibility of the courts’ proceedings appears only if a party or both parties (a cable operator and the collecting society) will request the Copyright Commission to decide on the agreement.

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

Copyright law, case I CK 312/02

March 17th, 2007, Tomasz Rychlicki

The Supreme Court in a judgment of 3 December 2003, case file I CK 312/02, has denided the right of action to a collecting society that wanted to initiate a copyright suit in the name of a living person. The Court held that the collective management does not include protection and management of moral and personal rights of living persons, creators or authors. In this case, the Polish Society of Authors and Composers (ZAIKS) wanted to bring an action for the protection of personal rights of a living author who composed music/soundtrack for the movie.

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

Personal rights, case I ACr 436/91

March 11th, 2007, Tomasz Rychlicki

The Supreme Court in a judgment of 30 Ocrober 1991, case file I ACr 436/91, that was issued under the old Act on authors rights of 1952, ruled that the personal interests in copyrights, are special personal rights as defined by the general rules of civil law, and they are not a separate conceptual category.

Personal rights, case I CKN 818/97

January 14th, 2007, Tomasz Rychlicki

The Supreme Court in its judgment of 3 September 1998 case file I CKN 818/97, published in OSP 1999, No. 7-8, item 142, ruled that the protection of personal rights/interests provided in Article 23 and 24 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, also includes author’s personal rights.

Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.

Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.

Trade mark law, case VI SA/Wa 55/06

July 21st, 2006, Tomasz Rychlicki

On 8 September 2000, partners of a civil partnership, filed an application for word-figurative trade mark TERMO SHIELD Z-223847. This application was filed by natural persons, since these are separate entrepreneurs. Civil partnership is formed through an agreement by the partners to achieve a common business purpose. The civil partnership does not qualify as an entrepreneur. The term entrepreneur should be used only to partners of a civil partnership, and not to a partnership itself. Civil partnership has no legal personality and has no legal capacity (a capacity to be a party in legal proceedings).

Z-223847

Two partners resigned. The other filed a request to the Polish Patent Office (PPO) to make change in the Trade Mark Register with regard to persons entitled from the application. The PPO refused to make such changes. The Polish Patent Office has recognized that this was only a withdrawal from the agreement concluded between individuals. The individual partners are separate entities for the PPO and others, and the right to the applied trade mark is a co-ownership/joint tenacy. The withdrawal of two partners can not affect the change of the holder of the trade mark application according to article 162(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

Article 162
1. The right of protection for a trademark may be assigned or be subject to succession. The provisions of Article 67(2) and (3) shall apply accordingly.
11. The right of protection for a trademark may be transferred to the organizations referred to in Articles 136 and 137 as a collective trademark or collective guarantee trademark respectively or to a number of entities as a collective right of protection.
12. Transfer of the right of protection, referred to in paragraph (11) may be effected only with the consent of the parties who enjoy that right.
13. Entry in the trademark register of the transfer of the right of protection, referred to in paragraph (11) after the regulations governing use of the trademark, referred to in Article 122 (2), Article 136(2) or Article 137(1) have been submitted.
14. A collective right of protection may be transferred to a single party as a right of protection for a trademark.
2. (deleted)
3. The right of protection for a collective trademark may be assigned as a joint right of protection to the undertakings grouped in the organisation referred to in Article 136. The contract of assignment shall determine the rules governing the use of such trademark to the extent to which it is practised in respect of the regulations referred to in Article 122(2).
31. A collective right of protection may be transferred to the organizations referred to in Articles 136 and 137 as a collective trademark or a collective guarantee mark. A contract for the transfer of the right should specify the rules governing use of that trademark to the extent as it is provided for in respect of the regulations referred to in Article 136(2) and Article 137(1) respectively.
4. The right of protection for a trademark may also be assigned in respect of certain goods for which the right of protection has been granted, if the goods for which the trademark remains registered on behalf of the vendor are not of the same kind. Once assigned, the right in question shall be dealt with as independent of the right enjoyed by the vendor.
5. The contract of assignment of a share in the joint right of protection shall be valid subject to the consent given by all of the joint owners.
6. Paragraphs (1), (3) to (5) shall apply accordingly to the right deriving from an application filed with the Patent Office, for which no right of protection has yet been granted.

The basis for the change of the persons applying for trade mark protection should be a waiver or transfer of this right. In this case, it did not happen. The PPO does not intervene in the mutual settlement between the partners. It is an internal matter of their contractual relationship.

Two dissatisfied partners filed a complaint with the court. The Voivodeship Administrative Court in Warsaw in its judgment of 13 April 2006 case file VI SA/Wa 55/06 has recognized that all partners of the civil partnership applied for protection of the trade mark in question. The Court agreed with the PPO, that the mere resignation of the two partners may not affect the change of the holder of the trade mark application. The basis for the change in Trade Mark Registry may be the court order on the settlement between the partners in the property (the right of protection for a trade mark is the economic right), or the waiver of the right to trade mark application or its disposal or transfer. This requirement follows from articles 67(2), 162(1) and 168 of the IPL.

Article 67
1. The patent may be assigned or be subject to succession.
2. The transfer contract shall be in writing on pain of invalidity.
3. The transfer of a patent shall be binding on third parties as from the date of its entry in the Patent Register.

Article 168
1. The right of protection for a trademark shall lapse:
(i) on expiry of the term of protection for which it has been granted,
(ii)on surrender of the right by the owner thereof before the Patent Office, with the consent of the parties having their rights therein.
2. The surrender of the right, referred to in paragraph (1)(ii), may also concern only certain goods for which the right has been granted (restriction of the list of the goods).
3. The surrender of a share in the joint right shall result in the transfer of the share on behalf of the other joint owners, proportionally to their shares.
4. Subject to paragraph (3), in the case referred to in paragraph (1)(ii), the Patent Office shall take a decision on the lapse of the right of protection.

The Court held that the IPL is a lex specialis in relation to the Civil Code. The PPO would infringe on the rights of partners the civil partnership if it has made changes to the Trade Mark Registry with regard to entitled persons, only on the basis of changes in composition of the civil partnership. The settlement between the partners is not a cognition of the Polish Patent Office. The order of the PPO does not create the composition of the civil partnership by establishing that the partners who left are engaged in representing the company. Only the agreement on the civil partnership determines who is a partner of such a civil partnership. The order of the PPO concerns only their right to the application for the grant of a right of protection for a trade mark. This right has the nature of co-ownership/joint tenacy of all partners, unless it is regulated different as described above, i.e. by he settlement between the partners in the property, or the waiver of the right to trade mark application or its disposal or transfer.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Trade mark law, case II GSK 248/06“.

Copyright law, III CSK 40/05

April 26th, 2006, Tomasz Rychlicki

The Supreme Court – Civil Chamber in it judgment 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, held that the expression of human intellectual activity which lacks adequate individuating characteristics, i.e. 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.

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

Copyright law, case I CK 281/05

March 26th, 2006, Tomasz Rychlicki

The Supreme Court in its judgment 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, held that 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.

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

Copyright law, III CSK 40/05

March 22nd, 2006, Tomasz Rychlicki

The Supreme Court in its judgment of 13 January 2006, case file III CSK 40/05, published in electronic database LEX, under the no 176385, held that “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.

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

Copyright law, case SK 40/04

February 21st, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its jugment of 24 January 2006 case file SK 40/04 held the collective management organization cannot act and function in the absence of remuneration scales/tables. It would not be able to properly exercise the collective management of copyright and the principle of equal treatment, without the enactment of the tables. In this sense, the adoption of the remuneration tables is a necessity for the collective management organization. The tables/scores have bonding effect on such a collecting society, which approved them, by virtue of the act under which they were issued. In the external contractual relations, and under pending approval by the Copyright Commission, that tables are deemed as an offer. The tables bond collecting societies and licensees only if they have been approved by the Copyright Commission. For this reason, the establishement of the remuneration tables must take into account all the economic and operational issues in order to avoid arbitrariness in constructing their levels, and scope.

Personal interests, case I ACa 564/04

January 25th, 2006, Tomasz Rychlicki

On 2 September 2002, the Polish company Secunda, a publisher of a portal website, posted a link to www.mlode-dupy.w.tertia.pl website on its webpage under the “Entertainment and sex” category in the “Winning websites” section under the name “Young women are the best”. The link to www.mlode-dupy.w.tertia.pl website was described as follows “10 hardcore pictures galleries. One could deal with this issue far better”. The gallery no 3 featured pictures of a woman in a swimsuit, that were made during a photographic session for candidates to advertising campaign. The plaintiff who worked with models agency sued Secunda. She argued that she has never agreed to a distribution of her image, nor received any remuneration for participation in a photo session. The plaintiff noted that a link to the www.mlode-dupy.w.tertia.pl website combined with the recommendation of this site are a form of distribution of the image of a person depicted in photos available on Secunda’s website. The defendant took no steps to ascertain whether the plaintiff consented to distribute these photographs and it did not take any action to obtain such consent, the defendant’s conduct, involving the unauthorized dissemination of the image of the plaintiff on the porno website, violates her image rights and degrade her in the public due to the inclusion of her image in pornographic pictures. Secunda claimed that it has no standing in this case because the infringer was a person who created a gallery available under www.mlode-dupy.w.tertia.pl link.

The District Court in Kraków in its judgment of 26 February 2004 case file I C 2060/03 ruled that Secunda infringed on plaintiff’s personal rights by publishing questioned images. The court said that Secunda was responsible because it had the opportunity to check the contents of the “Winning websites” section, and images contained therein. The editor was responsible for the compilation of recommendations and a link to www.mlode-dupy.w.tertia.pl website, and in this case it was Secunda. Both parties appealed.

The Appellate Court in Kraków in a judgment of 20 July 2004 case file I ACa 564/04 TPP 2004/3-4/155 rejected Secunda’s appeal and changed the lower Court’s decision on damages awarded.

Copyright law, case P 10/03

January 17th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 21 November 2005 case file P 10/03 held that the approval or denial of approval of the remuneration scales (remuneration tables/fees) for the exploitation of collectively managed works or artistic performances, by the Copyright Commission, is a decision within the meaning of the Code of Administrative Proceedings. This decision is a individual decision, addressed to a particular entity, i.e., in the case of a particular organization for collective management of copyright, which submitted the remuneration scales for approval. The Tribunal ruled that even such a decision is addressed to an individual, the remuneration scales (tables) contain general and abstract norms that may be applied to contracts that are conducted between a collecting society and a party interested in being a licensee of managed works.

Copyright law, case II CKN 1289/00

December 26th, 2005, Tomasz Rychlicki

The Supreme Court – Civil Chamber in its judgment 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, held that the development of a grid of entries, and a method how to define the composition of difficult entries (lexemes/lemmas) are the manifestation of 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.

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

Copyright law, case FSK 2253/04

October 18th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 13 October 2005 case file FSK 2253/04, published in electronic database LEX, under the no. 173097, ruled that whether a given subject is deemed as a copyrightable work, is not determined by the will of the contracting 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.

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

Copyright law, case IV CKN 458/00

July 26th, 2005, Tomasz Rychlicki

The Supreme Court – Civil Chamber in its judgment of 26 September 2001 case file IV CKN 458/00, published in the electronic database Legalis, held that questions included in 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. The Court held that the official documentary material is what comes from the office or another state institution, or concerns an official matter or what was created as the result of the application of the official procedure.

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

Copyright law, case I CK 232/04

July 11th, 2005, Tomasz Rychlicki

According to the judgement of the Polish Supreme Court of 23 November 2004 case file I CK 232/2004, it is possible to quote another’s work even in its entirety, if for the purposes described in Article 29 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.

Article 29
1. It shall be permissible to reproduce in the form of quotations, in works that constitute an integral whole, fragments of disclosed works or the entire contents of short works to the extent justified by explanation, critical analysis or teaching or by the laws of the creative genre concerned.

It is permissible so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work has been created. Under the said article one can quote a fragment of or an entire work of others already made public by referencing or reproducing such fragment/work and using it in one’s own work within the scope justified by explanation, critical analysis, teaching or the rights governing a given kind of creative activity. If these requirements are met the quotations are allowed without the author’s authorization.

On 26 April 2001, the District Court in Warsaw held in favor of the claimant Tomasz Sarnecki who filed a lawsuit against the weekly magazine “Polityka”, the Labor Cooperative in Warszawa and the editor in chief Jerzy B. for copyright infringement. The Court found the respondents liable (jointly and severally) to a fine of PLN 5.000 as a compensation for the willful infringement of the author’s moral rights, a fine of PLN 15,000 as a compensation for the author’s economic rights and obliged them to publish in their magazine a press declaration communicating to the public the fact that the claimant’s work was used without his permission.

On the cover of its 5 June 1999 issue, the “Polityka” magazine published a substantial fragment of the famous Solidarity Citizens’ Committee election poster from June 1989, authored by Tomasz Sarnecki. The poster, titled “High Noon, June 4, 1989” pictured a sheriff holding a paper sheet with the word “Election”, and a characteristic “Solidarność” logo pinned to his chest right above the sheriff’s star. It is worth to mention that the image of sheriff was taken from the movie “High noon” and depicted Gary Cooper. The “Polityka” magazine cover incorporated that very same poster, save for minor modifications. In particular, the respondent left out the word “Solidarność” placed above the head of the sheriff as well as the poster’s title (“High Noon, June 4, 1989”) replacing it with the wording “10 years of freedom. The history of the III Republic of Poland. Special report”. The cover referred to an article published in that issue of the magazine, commemorating the 10th anniversary of the first free democratic election in Poland. However, the editor’s office used the poster without it’s author’s knowledge or permission, not bothering even to indicate his authorship or to pay him any remuneration. This of course led to the author to file a suit in the court.

The court of first instance found, based on an expert’s opinion, that the cover of the “Polityka” magazine cannot be classified as an independent work inspired by the poster, because it incorporates the poster directly, using 90% of its plastic form without any – even the slightest – modifications. The designer of the cover did not modify the poster in any way and maintained the substance of the claimant’s work, hence infringing the latter’s moral right to sign the work with his name or pseudonym and his economic right to use the work, to dispose of it and to receive remuneration for the use of that work. Additionally, such infringement was willful, as the respondents did not exercise due professional care in identifying the author of the poster. The court found that Article 29 of the ARNR could not apply in the case at hand because the respondents’ behavior had exceeded the scope of fair use, as described in Article 34 of the ARNR.

Article 34
It shall be lawful to make use of works within the recognized limits of use on condition that the creator and the source are expressly mentioned. Their creator shall not be entitled to remuneration unless the law provides otherwise.

The above reasoning was subsequently adhered to by the Court of Appeals in Warsaw, which dismissed the respondents’ appeal on 18 September 2003. The court stated that the scope of quotation incorporated in the respondents’ work was so substantial that it was impossible to treat it as a permissible borrowing of a “snippet” of someone else’s work, as understood by article 29 of the ARNR and emphasized that the respondents did not even attempt to change the “atmosphere” of the poster in any way. The court found also that the fact that the poster was politically propagandist in nature was irrelevant and underlined that the commercial character of the use of it was illegal.

The respondents therefore filed a cassation claim with the Supreme Court, based in particular on an improper interpretation of the provisions of the ARNR. Amongst others, the respondents accused the Court of Appeals of having misinterpreted 1) Article 29 by wrongly assuming that it applies solely to cases where only a fragment of another’s work (as opposed to a whole work) is borrowed; 2) Article 29(1) in conjunction with Article 35, by wrongly assuming that for the purposes of setting the limits of fair use, the politically propagandist nature of the work is irrelevant and by disregarding the elements of this genre; 3) Articles 16(2), Article 34 and Article 78(1) – by wrongly applying those provisions and wrongly assuming, that the author’s moral rights had been infringed by not indicating the author’s personal information on the cover; 4) Article 17 and Article 79(1) by wrongly applying those articles and by wrongly assuming that the respondents infringed the author’s economic rights and 5) Articles 34 and 29(1) and (3) by not having applied those articles and by wrongly assuming that the claimant therefore has the right to remuneration. In conclusion the respondents requested that the sentence be changed and the lawsuit dismissed or alternatively that it be reversed and remanded.

Article 35
Lawful use shall not be prejudicial to the normal exploitation of the work or to the legitimate interests of the creator.

In turn, the Supreme Court upheld the Court of Appeals judgment. In particular it disagreed with the respondents’ opinion that the cover of their magazine constituted an independent work, inspired by another’s creative activity and incorporating that another’s work in the form of a quotation, as permitted under the fair use doctrine, rooted in the ARNR. The SC stated that a cover of a magazine can indeed constitute a work (be it an entirely independent one or inspired by someone else’s creative activity), but only on condition that such work, even though incorporating quotations, is primarily a result of one’s own intellectual efforts. In the Court’s opinion the cover of the “Polityka” magazine of 5 June 1999 could not constitute an independent creative work (resulting from the respondents’ own intellectual efforts) and incorporating a permissible quotation. The cover incorporated over 90% of the claimant’s work without any modifications, save for removing some of the subtitles and inserting others (such as the issue’s special report’s title). The respondents raised that their incorporation constituted a permissible quotation, justified by the rules governing this kind of creative activity. They also pointed out that the scope of the incorporation (90%) did not amount to an infringement of the author’s rights, since Article 29(1) explicitly allows to quote in works constituting an independent whole, not only fragments of disseminated works but also minor works in their entirety. According to the SC, incorporating such a vast majority of elements of the claimant’s poster could under no circumstances be qualified as a mere borrowing of snippets of the claimant’s work, because it is not the size of the quoted work but the purpose of the quotation coupled with the relation between the work and the quotation that it incorporates, that is of importance under Article 29. The Court stated that in certain justified cases it is permissible to quote even the entire work; however this is so only for as long as the quotation is incorporated for the purposes of explanation, critical analysis and teaching or is justified by the rules governing a given type of creative activity (genre). In any event, the quoted fragment (or even an entire work) must remain to one’s own intellectual input in such a proportion, so as to eliminate any doubts as to whether an independent work was created. And although there are no strictly defined rules describing the exact size of the permissible quotation, the Court held that by its nature, the quotation must be subordinate vis-à-vis the work that incorporates it. However, the issue of whether a particular quotation is permissible based on its size and scope will have to be analyzed on a case by case basis. In the case at hand, the Court found that the respondents’ own input into the cover was very limited and consisted of removing the subtitles (10% of the poster), minimizing the picture, and replacing the original slogan with the special report’s title. It is therefore impossible to justify the respondents’ theory that such “input” led to the creation of an entirely new and wholly independent work, merely inspired by the claimant’s poster.

The Supreme Court has also rejected the respondent’s allegation, that the use of the complainant’s work was justified by the rules of that particular genre (political propaganda). The respondents claimed that the cover of a magazine may consist of various graphic elements constituting pastiche, caricature or collage. And although the Court agreed with that statement, it nonetheless stressed that whenever speaking of a quotation of an artistic work (commonly used in pastiche, caricature and collage techniques), one must remember that all of the works so created must change the substance and the meaning of the work incorporated in them, so as to demonstrate their own view of the issues touched upon in the original work and not amount to a mere copycatting. Only then, will the permission of the author be unnecessary. Since the respondents’ cover did not meet those requirements, their reliance on Article 29(1) was unfounded and the use of the poster constituted a copyright infringement.

The Court also noted that even if the respondents were entitled to quote the entire work, without the author’s permission (as per Article 34) they were still under the duty to identify the author and the source of the work quoted, irrespective of whether such work was commonly recognized or not. Placing the author’s name and the source of the work quoted is a “conditio iuris” applicable to all works, not only those created by obscure authors but also to those whose authors are famous and widely recognized. The respondents’ excuse, that it was impossible to identify the author of the poster because he published his work anonymously also failed. The SC stated that it is the author’s moral right to publish his work anonymously, and if he chooses to do so this does not mean he authorizes others to claim authorship of that work. If it was indeed impossible to identify the author of the work, the respondents’ could have always placed information that the quotation comes from an anonymous author, and hence avail themselves of article 34 exception. The Courts has also stressed that the respondents had entirely disregarded the existence of article 8(3), which lists the entities authorized to represent authors who cannot be identified because they wished to remain anonymous3. The Court has also rejected the respondents’ argument, that the politically propagandist nature of the poster deprived it of the protection granted by the ARNR, since there is no such provision to this effect under the said Act. The Court added also, that the fact that the poster was a political propaganda, destined to be used as a source of pastiche, collage or caricature does not mean that its author cannot claim remuneration for such use (pursuant to proper licensing agreements).

Bearing in mind all of the above, the Supreme Court held, that both the court of I instance and the court of appeal rightly found the respondents liable for the infringement of the claimant’s moral and economic author’s rights and that the latter did indeed deserve the protection of the ARNR. Therefore, the Supreme Court upheld the lower courts’ decisions and ruled that it is possible to quote another’s work (even in its entirety) only if made for the purposes described in Article 29 of the ARNR and so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work was created.

The case unequivocally sets the limits of a permissible quotation, interpreting the law very strictly and leaving no place for maneuver for those who want to free ride on other’s creativity under the veil of freedom of press and information. It also raises the standard of due care for professionals, such as magazines, who now need to exercise the highest level of due care when referencing or reproducing works of others.

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

Copyright law, case II. 1K. 1092/32

May 18th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 8 November 1932, case file II. 1K. 1092/32, published in Zb. Orz. 1933/I poz. 7., ruled that a collection of posters or advertisements, calendars, catalogues, railway timetables, cookbooks, patterns, forms – all may be subject to copyright law, if the form of their design, layout or explanations have independent and individual character.

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

Copyright law, case I ACr 453/95

April 26th, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 5 July 1995, case file I ACr 453/95, unpublished, held that 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).

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

Polish regulations on copyright

April 18th, 2005, Tomasz Rychlicki

I. Introduction
To begin with, I have to write about the less or more important translation problem. The main Polish “copyright” act is 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. 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.

II. The law
– The 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.

III. The subject matter of copyright
According to the provisions of 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,
– it must be a manifestation of creative activity,
– it must have an individual character.
See J. Barta, “Ustawa o prawie autorskim i prawach pokrewnych. Komentarz“, Dom Wydawniczy ABC, Warszawa 2001, p. 68.

To be continued…

See also “Polish case law on copyright“.

Copyright law, case I PKN 196/98

March 21st, 2005, Tomasz Rychlicki

The Supreme Court in its judgment 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, ruled that 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 undefined 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).

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

Copyright law, I SA/Lu 408/98

February 26th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 30 June 1999, case file I SA/Lu 408/98 held that 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.

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

Copyright law, case I ACr 1191/95

February 26th, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in the order of 12 December 1995 r. case file I ACr 1191/95 held that the criterion of profitability (activities aimed at profit) is not inherent feature of business/economic activity. Such activity is distinguished because of its professional nature, the associated repetition of actions, subject to the principles of rational management and participation in trade.

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

Copyright law, case I ACa 2/96

February 22nd, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 2 October 1996, case file I ACa 2/96, held that the protection of author’s rights is attributed to the creator of a creative work and can be directed against anyone who infringes on these rights. This is an absolute protection, that is totally independent of whether there existed any contractual relationship between the creator and the infringer. The use of works without permission constitutes an infringement of author’s rights/copyrights.

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

Copyright law, case I CR 666/69

January 19th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 10 February 1970, case file I CR 666/69, published in OSP 1972, No. 2, item 30, considered the co-creative contribution of several authors as the essential feature of the joint work, whereby the “co-creativeness” is expressed in an indivisible creation, which is a common and indivisible in terms of creative process that led to its production. The creative work of each of the authors may be in relation to each other in terms of time or as a concurrent, or as the work of each of the contributors following one after the other. According to the court, between such works should occur a relation that each of such work would not individually lead to the creation of an independent work of a particular type.

In this case, the Court called for the exclusion from the definition of a joint work of actions that were based on compiling the work of others in terms of an editorial job, or adding philological, critical or comparative comments, etc.

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