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Archive for: Art. 54 PBAC

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 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.

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“.

Access to public information, case I OSK 667/11

October 23rd, 2011, Tomasz Rychlicki

The mayor of the Polish town Rabka-Zdrój refused to disclose land-use planning maps. The request was filed according to the provisions of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The mayor decided that copyright law does not allow for the disclosure, because these maps were created by the Studio of Architecture and Urban Design from Kraków. The applicant filed a complaint against this decision. The Voivodeship Administrative Court in Kraków in its judgment of 22 November 2010 case file II SAB/Kr 114/10 ordered to provide the requested information. The Mayor filed a cassation complaint.

The Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11 dismissed it, and held that as public information are deemed not only documents that were directly created/edited and produced by a public authority, but such a character have also documents that the authority uses to carry out the tasks entrusted to the law, even if the copyrights belong to another entity. The most important is the fact, that these documents are used to carry out public tasks by certain authorities and have been produced on behalf of those bodies. Therefore, it is not about exercising copyrights, but about the access to the content of the document that was created on behalf of public administration in order to carry out public tasks. The SAC noted that this opinion is already established in the case law of administrative courts for many years. For instance, the judgment of the Supreme Administrative court of 9 February 2007 case file I OSK 517/06, the judgment of the SAC of 7 December 2010 case file I OSK 1774/10, or the judgment of the SAC of 18 September 2008 case file I OSK 315/08.

In this case, the Court had no doubt that the maps were made in order to perform a specific public task, and were commissioned by public administration body. Its disclosure is not deemed as exercise of the copyright, but as the implementation of the right to access public information. If, there were statutory barriers to disclose such information in a certain way or in a particular form, or there were statutory grounds for refusal of access to public information, the Mayor was obliged to deal with the request in the form of process. However, the lack of disclosure, and lack of procedural decisions in this matter meant, that it was administrative inaction.

Trade mark law, case VI SA/Wa 370/10

July 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its order 17 June 2010 case file VI SA/Wa 370/10 held that if the party did not act properly within a given period of time in court proceedings without its fault, the court may decide on the request, on the restoration of a deadline. The request for restoration shall be filed within the Court, in which the act was to be made within seven days from the time as the cause of transgression ceased. The request for restoration of a deadline to file a complaint must be filed through the court or authority. The restoration of a deadline has unique nature and can only occur if the party convincingly proves of the absence of its guilt. The lack of guilt means a situation in which circumstances that were impossible to overcome and that were independent from the party, have occurred , and these were the reasons that the deadline set by the law was exceeded (see the order of the Supreme Administrative Court of 11 April 2008 case file I OZ 246/08).

In assessing the occurrence of this condition, the Court has to adopt an objective “test of care”, which may be required from everyone duly taking care of its interests. The restoration is therefore not admissible if the party is guilty of even slight negligence. If the party is represented by a professional representative, while assessing the guilt of not preserving a deadline, the representative acts should be considered, adopting an objective test of care, which may be required from a professional legal representative duly caring for the interests of its client, with the reservation that negligence of people, whom such representative employs, burden the representative itself, and therefore do not release the party from the guilt in non-reserving a deadline.

This means that the negligence made by administrative staff in activities necessary to preserve the procedural deadline, which was commissioned by a patent attorney who is a representative of a party, does not justify the restoration of a missed deadline.

Terravita Holding Establishment from Vaduz, Lichtenstein was a party who lost this case. See also “Trade mark law, case VI SA/Wa 370/10“.

Industrial design, case VI SA/Wa 134/10

June 27th, 2010, Tomasz Rychlicki

The Voivodeship Administratve Court in Warsaw in its order of 16 June 2010 case file VI SA/Wa 134/10 held that the principle of filing a complaint in the administrative proceedings through a public authority/body means that in case of a complaint filed directly to the administrative court or through a public authority other than the one whose action or inaction is the subject of the complaint, that court or authority should hand on such complaint to the competent authority of public administration. The deadline to bring an action referred to in article 53 § (1-3) of the PBAC, is decided on the date when the complaint was delivered to the relevant court or public administration body by the public authority who received it first.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

Trade mark law, case VI SA/Wa 370/10

May 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its order 14 April 2010 case file VI SA/Wa 370/10 held that the complaint to the Administrative Court must be filed through the authority, whose action or inactivity is the subject of the complaint within thirty days from the date of notification to the applicant of the decision. The principle filing a complaint through a public authority means that in case of complaint filed directly to the administrative court or through a public authority other than the one whose action or inactivity is the subject of the complaint, the court or authority should pass it on to the competent authority of public administration. The date when the complaint was passed on by the court (public body) decide on the preservation of the deadline for bringing an action. If the complaint is brought after the deadline to file it, it shall be rejected. Terravita Holding Establishment from Vaduz, Lichtenstein was a party who lost this case. See also “Trade mark law, case VI SA/Wa 370/10“.