Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: Art. 278 §2 CRC

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Criminal law, case II Ka 269/11

November 14th, 2011, Tomasz Rychlicki

Maria S. was charged by the Prosecutor based on the provisions of Article 278 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

Such situation happened because, during the investigation, the Police found on her laptop two shareware programs Win ZIP 8.1 and Win Rar 3.0. This software was valued 113,89 PLN each, and the period of time to buy a license already expired. Maria S. explained that she wasn’t aware that she had illegal software installed. She argued that both programs were installed by computer service technicians during the repair of her laptop. This statement was confirmed by a witness expert testimony. The expert said that both programs were installed at the same time, when the operating system was also configured. The expert noted that this is typical practice of computer services personnel who install software needed to install other programs, and do not remove it after the completion of repairing. At the time of installation of both programs, they were legal.

The Regional Court in Biłgoraj acquitted Maria S. of all charges. The Court found that she did not act in order to gain material benefits and she had no full awareness that her behavior lead to the obtainment of computer programs without the consent of the person entitled. The Prosecutor appealed. He argued that Maria S. was guilty because she wasn’t careful enough, and she did not buy both licenses immediately.

The District Court in Zamość in its judgment case file II Ka 269/11 upheld the verdict. The Court ruled that issues of normal or increased diligence or care that should appear in case of expired trial or shareware software, do not belong to the category of the constituent elements of the alleged offense.

Copyright law, the allowed personal use

November 16th, 2009, Tomasz Rychlicki

Downloading MP3s (or movies, pictures, press articles) is not illegal under the Polish law. According to the provisions of Article 23 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.

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.

That was also explicitly said in Rzeczpospolita’s article entitled (this is my loosely translation of course) “Downloading MP3’s files is not a crime“.

No one in Poland will go to prison for downloading music or movies from the Internet. But you can get there for file sharing.

Computer software is protected on different rules. There are proper provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine]

There is also Chapter 14 entitled Criminal Liability in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.