Copyright 2019 Comparisons

Last Updated February 18, 2019

Law and Practice

Authors



Traple Konarski Podrecki & Partners has a IP team of 24 lawyers providing legal assistance in the field of copyright and related rights to operators in the mass media; advertising and marketing; science and innovation; the internet; the creation and production of computer games; the creation and implementation of IT solutions; culture, arts and entertainment; audiovisual production; industrial design; and architecture and construction. The firm advises authors, businesses, local governments and academic institutions that use copyrighted works and items protected by related rights in their activities. Its experts conduct training and workshops on copyright law, press law and new technologies law, including internal training and workshops for specific companies, adapted to the legal and business environment in which the companies operate. The firm, which has its key office locations in Warsaw and Cracow, has earned top positions in local and international law firm rankings within the categories of IP, TMT and competition.

After Poland reclaimed its independence in 1918, four different copyright regulations were in force in its particular territories. This situation changed in 1926 when the first common copyright regulation was introduced (Copyright Act of 20 March 1926), later replaced by the Copyright Act of 10 July 1952. Due to the political situation in Poland, the copyright system and its functions were not paid much attention by the legislator, at least on the national level. After political changes in Poland during 1989-1990, the need for a new copyright law was identified. As a result, in 1994 a new copyright regulation was introduced – the Copyright and Related Rights Act of 4 February 1994 (“the Act”).

During the work on all of the above-mentioned acts, their authors drew inspiration from numerous copyright regimes, including those of Germany and France.

As regards national law, copyright is almost exclusively regulated in the Copyright and Related Rights Act of 4 February 1994. Under this regulation, copyright to a work covers both property/economic rights, which protect the author’s material interests, as well as personal rights, which protect the author’s non–material interests. Up until 19 July 2018 the above-mentioned Act also regulated the functioning of collective management organisations (CMOs). The legislator decided, however, that implementation of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright, and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, demanded essential changes in the previous regulations and deleted the provisions concerning CMOs from the Act. New statutory regulations concerning this matter can be found in the Collective Management of Copyright and Related Rights Act of 15 June 2018.

Other regulations that govern intellectual property law include the Law on Industrial Property of 30 June 2000 (patents, utility models, industrial designs, trademarks, geographical indications, integrated circuits topographies) and the Database Protection Act of 27 July 2001. To some extent, all of the above intellectual property can also benefit from protection under Articles 23 and 24 of the Civil Code of 23 April 1964.

Since both the EU and international conventions/treaties constitute an integral part of the Polish legal system, certain rights or duties of individuals in Poland may be derived directly from these regulations.

It is also worth noting that even though court decisions and judgments do not constitute actual law within the Polish legal system, they nevertheless play an important role in establishing certain standards for interpretation as well as supplant statutory regulations.

Poland is currently a party to numerous international conventions/treaties, among others:

  • The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 26 October 1961 (in force in Poland from 13 June 1997);
  • Convention Establishing the World Intellectual Property Organization of 14 July 1967 (in force in Poland from 23 March 1975);
  • Paris Act of the Bern Convention of 24 July 1971 (in force in Poland from 4 August 1990);
  • Agreement on Trade-Related Aspects of Intellectual Property Rights of 15 April 1994 (in force in Poland from 1 July 1995);
  • WIPO Copyright Treaty of 20 December 1996 (in force in Poland from 23 March 2004); and
  • WIPO Performances and Phonograms Treaty of 20 December 1996 (in force in Poland from 21 October 2003).

The level of protection given to foreign copyright-holders depends on whether or not they are also party to some of the conventions or treaties that are binding on Poland.

According to the Bern Convention – with few exceptions – all its members’ citizens are entitled to equal protection in the territory of all states party to this convention – on the same level as rights-holders in each particular country (national treatment principle), the minimum level of protection is regulated directly in the convention (minimum protection principle) and the protection is granted to the works and authors automatically, ie without the need to go through any formalities such as registration. What is more, protection under the convention is independent of whether or not the work is entitled to protection in the country of origin. On a par with citizens, the convention grants protection to persons who have their place of residence in one of its members’ territory as well as to works that were first (simultaneously) published in this territory.

The Rome Convention provides for similar principles as the Bern Convention (national treatment, minimum protection) with regard to some related rights – such as rights of performers and producers of phonograms.

The TRIPS Agreement provides for the minimum protection principle as well as the national treatment principle; however, with regard to related rights this last principle is limited. TRIPS also introduces a most-favoured-nation treatment principle according to which, insofar as citizens of a certain member enjoy better protection in another member’s territory due to, for example, a bilateral agreement, such protection must also be enjoyed by citizens from all other members of the TRIPS Agreement.

Both WCT and WPPT also introduce the minimum protection and national treatment principles.

According to Article 7 of the Copyright and Related Rights Act, should the international agreements to which the Republic of Poland is a party provide for broader protection than envisaged by this Act for unpublished works of Polish citizens or for works published for the first time within the territory of the Republic of Poland or simultaneously within the territory of the Republic of Poland, or for works published for the first time in Polish, the provisions of such agreements shall apply. Broader protection may henceforth apply to foreign copyright-holders if their work (a) was first (simultaneously) published in Poland, and (b) was first published in the Polish language.

For EU nationals, the principle of non-discrimination means that their legal position cannot be worse than that of Polish nationals.

Notwithstanding the above-mentioned rules, foreign copyright-holders enjoy protection stemming from the Copyright and Related Rights Act on par with Polish citizens.

According to Article 1, Section 1 of the Act, a work benefits from copyright protection if the following conditions are met:

  • The work is created as a direct result of a natural person’s (author’s) actions;
  • The work is original (a result of one’s creative activity of individual nature); and
  • The work has been established in any form.

The above conditions apply without exceptions to all works, regardless of their nature. The Act explicitly lists numerous examples of works potentially subject to copyright such as artistic, photographic, industrial design, architectural and audio-visual works. The requirement to establish a work in any form does not mean that a physical carrier (copy) of the work needs to be created.

It seems safe to assume that the standards developed in Polish law are compatible with the CJEU’s harmonisation attempts at introducing the EU-wide criterion of the author’s own intellectual creation.

No formal requirements need to be met in order for the work to benefit from copyright protection. However, if a person has been indicated as the author, either on the work’s physical copies or publicly by other means in connection with the work’s dissemination, this person is presumed to be the author. On the other hand, until the author has claimed authorship their rights are exercised by other entities (producer, publisher or CMO).

There is currently no register for copyrighted works in Poland. However, some CMOs upon their own initiative run registers of works of certain types (to which they collectively manage rights). Entry into these registers does not bear any legal relevance.

All works meeting the general criteria provided for in the Act are subject to copyright. There is no exhaustive list of types of work that are copyrightable. The Act does, however, explicitly exemplify some of the possible types of copyrightable works. This list includes:

  • works expressed in words, mathematical symbols, graphic signs (literary, journalistic, scientific and cartographic works and computer programs;
  • artistic works;
  • photographic works;
  • string musical instruments;
  • industrial design works;
  • architectural works, architectural and town-planning works, and town planning works;
  • musical works and textual and musical works;
  • stage works, stage and musical works, choreographic and pantomimical works; and
  • audio-visual (including film) works.

Software does benefit from copyright protection. According to Article 74, Section 1 of the Act, computer programs (software) benefit from copyright under the same conditions as literary works. There are, however, some differences between the scope of copyright protection of software and other works. Software authors’ exclusive rights cover only aspects expressly indicated in the Act. These aspects include:

  • permanent or temporary reproduction of a computer program in full or in part, by any means and in any form (where it is necessary to reproduce a computer program for its loading, displaying, running, transmitting and storing, consent of the rights-holder shall be required for such acts);
  • translation, adaptation, arrangement or any other alteration of a computer program, irrespective of the rights of the person who made such alterations; and
  • public dissemination, including lending for use or rental, of a computer program or a copy thereof.

The scope of permitted use (exceptions and limitations) is also regulated differently (eg, numerous exceptions have been expressly excluded in regard to software).

Under Polish law, software cannot generally benefit from other forms of protection than copyright, in particular sui generis database protection or patents (it is relatively rare – compared to, for example, EPO practice – for a software-related invention to be granted patent protection since in Poland the invention needs to meet a “technical character” criterion, which requires that the invention as a whole has certain impact on matter and it is argued that this impact cannot be limited to interaction between the software and computer).

In certain situations, computer software can indirectly benefit from regulations aimed at preventing unfair competition under the Combating Unfair Competition Act of 16 April 1993.

As a rule, in Polish law all forms of IP protection cumulate (all exceptions to this rule have been removed by the legislator).

Databases benefit from copyright protection. In light of specific regulations in that regard, introduced by the Directive 96/6/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases implemented by the Act (Article 3), protection is granted to databases possessing the features of a work, if the selection of materials used in that database, their arrangement or composition are creative.

Since 20 June 2007 databases have benefited from the sui generis database protection, which aims to protect the investment of the database’s producer. Before that date, the Database Protection Act of 27 July 2001 expressly denied to databases protected by copyright the sui generis protection. It is possible to say, however, that these systems of protection cumulate in the strict sense since the scope of granted protection is different and – at least in theory – does not overlap. The sui generis protection precludes third parties from extracting and/or re-utilising the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database (Article 6, Section 1 of the Database Protection Act of 27 July 2001).

In certain situations, databases can also indirectly benefit from regulations aimed at preventing unfair competition under the Combating Unfair Competition Act of 16 April 1993.

Industrial designs benefit from copyright protection without detriment to the right in registration of the industrial design. There are no additional requirements other than the general “work” criteria for an industrial design to be granted copyright protection. Copyright protection of the industrial design differs from the right in registration protection in the following regards:

  • Copyright protection requires the industrial design to constitute a “work” within the meaning of Article 1 of the Act while the right in registration protection requires the design to constitute a new appearance of a product or part thereof of individual character resulting from the features of, in particular, the lines, contours, shape, colours, texture and/or materials of the product itself and/or its ornamentation.
  • Copyright protection is as a rule broader (barring certain permitted use exceptions under the Act, third parties are precluded from, among other acts, the copying and communicating to the public the work since the author has exclusive right to use the work and to dispose of its use throughout all the fields of exploitation and to receive remuneration for the use of the work) than the right in registration protection (the rights-holder has the exclusive right to use the industrial design for profit or for professional purposes and may prohibit third parties from making, offering, placing on the market, importing, exporting or using a product in which the design is incorporated or to which it is applied, or stocking such product for those purposes).
  • Copyright protection period is much longer (authors’ economic rights expire after 70 years have passed since the author’s death) than protection under the right in registration (up to 25 years in five-year periods).

Protection under the right in registration cumulates with copyright protection without any limitations since 1 December 2015. Before that date, Article 116 of the Law on Industrial Property Act of 30 June 2000 (now deleted) denied copyright protection to products incorporating industrial designs after the protection under the right in registration had lapsed.

In certain situations, industrial designs can also indirectly benefit from regulations aimed at preventing unfair competition under the Combating Unfair Competition Act of 16 April 1993.

The Polish legal system expressly acknowledges and regulates only two kinds of peculiar works – audio-visual works and computer programs (software). However the general criteria of protection mean that all the categories listed above may be protected. The burden of establishing certain standards for the protection of peculiar works falls on the courts, whose decisions take into account the specific circumstances of each individual case.

Fictional characters are generally not protected by copyright per se. However, if certain conditions are met and the character is sufficiently described (precisely portrayed, with their background presented in depth) copyright protection to the character is possible. The scope of this protection, however, is as yet still very imprecise.

TV formats may be eligible for different types of protection, providing that certain conditions are met. Due to the fact that copyright protection cannot apply to ideas, procedures, methods, principles and the like, the scope of protection of TV formats under copyright law is elusive and has generated conflict between (professed) rights-holders and their competition.

Copyright protection of sporting events in Poland is controversial. Sport events per se do not constitute “works” and as such are not subject to copyright protection. This assessment has, however, been questioned as regards sporting events that consist in original performances, such as figure skating. What is more, an  audio-visual live recording of the event may in itself benefit from copyright. If the sporting event (the live recording) has been fixed, the videogram’s producer also benefits from the rights in videogram (related right). Without detriment to the above rights,  television broadcasting organisations are entitled to broadcast related rights, which also may cover the sporting event’s broadcast.

As of yet, no specific rules for multimedia works have been established in Polish law and the question is whether they should be protected by the regime applicable to the dominating type of work they may include (absorbing all other types), eg the regime for audio-visual works, or whether no such “absorption” is allowed. With regard to multimedia works, maps, websites and museum exhibitions, copyright protection has been recognised in case law. Scents have not been recognised as copyrightable.

Among other types of works, it is worth noting that architectural works are deemed relevant in Poland and the scope of their protection is not always clear. Insofar as video games do not fall into the “multimedia works” category, they are also considered a crucial type of work that demands regulation and whose social and economic importance grows rapidly.

The only person to whom authorship can be attributed is the person whose individual and creative contribution to the work has been established. A corporate body cannot be regarded as the author of a work. As far as AI is concerned, works created by a computer program are generally not protected by copyright since they are not an original creation of a natural person (should software only constitute a tool, a work so created can be protected).

Ownership of copyright, as a rule, initially belongs to the author (two exceptions from this rule involve the author’s economic rights to a collective work where the producer or publisher acquires these rights once the work has been created, and the author’s economic rights to a computer program where the employer acquires these rights to a work created by an employee within their scope of employment, unless the employment agreement states otherwise).

See 3.1 Author of Copyrightable Work.

The author is generally identified by their full name. Identification by pseudonym is also possible, shall the author wish for it. Moreover, the Act expressly allows for the work to be disseminated anonymously. If a work has numerous authors, the above rules apply to all of them individually (custom and practice may allow authorship of certain authors to be indicated in a different form than the co-authors, such as a bigger font).

As far as presumptions are concerned, if a person has been indicated as the author, either on the work’s physical copies or publicly by other means in connection with the work’s dissemination, this person is presumed to be the author.

On the other hand, until the author has claimed authorship, their rights are exercised by other entities (producer, publisher or CMO).

The Act provides for specific regulation regarding works that constitute the result of collaboration (Article 9 of the Act). Such joint authorship exists irrespective of whether or not it is possible to identify each individual contribution to the work, provided that prior agreement between the co-authors has been made regarding creating a joint work.

It is presumed that co-authors contributed to the creation of a joint work equally. However, each co–author is entitled to prove that the proportions of these contributions were different. The co-authors may also decide on the size of their contributions in a suitable agreement.

Each co-author may exercise their copyright with respect to their autonomous part of the work without detriment to other co-authors. The consent of all co-authors is required in order to exercise copyright with respect to the whole work (in the event such consent cannot be achieved, each of the co–authors may request a court decision in that matter). Each of the co-authors may pursue claims for infringement of copyright with respect to the whole work (co-authors shall have the right to compensation received in proportion to their shares).

According to Article 11 of the Act, once a collective work has been created, the author’s economic rights to such a work are automatically acquired by its producer or publisher. Nevertheless, copyright to each individual part of such work is owned by its individual author. Shall a third party make unauthorised use of part of the collective work, it depends on the circumstances of the given case as to whether the producer’s/publisher’s or each particular author’s copyright (or both) has been infringed.

The scope of protection of a collective work is different from the scope of protection of a copyrightable database. One work can benefit from both of the above-mentioned types of protection.

Poland has generally adopted a limited work-for-hire doctrine (the parties to the employment agreement are also given freedom to regulate this matter otherwise). Economic rights to computer programs created by employees within the scope of their employment are automatically owned by their employer unless the employment agreement states otherwise (Article 74, Section 3 of the Act). Copyright to other works created by employees belongs to their employers only if certain conditions are met (Articles 12 and 13 of the Act).

  • Unless statutory law or the employment agreement state otherwise, the employer, whose employee created a work within the scope of their employment, obtains the author’s economic rights to that work to the extent justified by the purpose of the employment agreement and the common intentions of the parties once they accept the employee’s work.
  • Unless the employment agreement states otherwise, accepting the employee’s work results in the employer gaining ownership of this work’s copy.
  • Shall the employer fail to notify the employee within six months from the day they receive the employee’s work that they either do not accept the work or condition such acceptance on applying certain changes to it in an appropriate (indicated) period of time, it should be assumed that the work has been accepted without reservations. The parties may indicate a different period of time to notify the employee.
  • Assuming the employer has obtained the economic rights to their employee’s work by accepting it but the work was never disseminated, once two years from the acceptance of the work have passed, the employee is entitled to determine in writing an additional appropriate period of time in which the employer should disseminate that work. Shall the employer fail to do so, these rights shall return to the employee, together with the ownership of the work’s copy unless the employment agreement states otherwise. The parties may indicate a different period of time in which to disseminate the work.

There is a significant difference between the rules governing works created within the scope of one’s employment and works created by consultants or freelancers. The last two groups are considered independent entities and as such copyright (author’s economic rights) can only be obtained from them under the same rules as from any other third party. In particular, the transfer of ownership of a copy of work does not result in the transfer of copyright (author’s economic rights) to the work (Article 52, Section 1 of the Act). However, in relation to audio-visual works, it is presumed that under the contract regarding the making of or usage of a certain work, the producer obtains exclusive economic rights to use these works in the audio-visual work as a whole.

Distinction between employees and individual contractors is drawn according to the rules set out by the Labour Code of 26 June 1974. In simplified terms, the employee’s working time and its distribution towards certain tasks is decided by the employer. The employer also instructs the employee on how to perform their work.

Under Polish regulations it is immaterial whether the employer is a public authority. However, as exemplified above, some unique rules concern certain types of works. Such rules concern, inter alia, scientific works, which are usually created by persons employed by public universities.

If the author wishes to remain anonymous, as well as before they have claimed their authorship, their rights are exercised by other entities. According to the circumstances of a given case, these can be the producer, publisher or a CMO.

Specific regulations regarding orphan works cover mainly the permitted use of such works. Provisions of the Act in that regard are quite extensive and implement the rules set forth by Directive 2012/28/EU of the European Parliament and the Council of 25 October 2012 on certain permitted uses of orphan works. Such use is conditional on first carrying out a diligent search for the rights-holder. Moreover, only certain types of organisations, indicated by the legislator, benefit from this permitted use. The Act also explains when the work loses its orphan status.

According to Article 17 of the Act, the author’s economic rights grant the rights-holder the exclusive right to use the work, to dispose of it in all fields of exploitation, as well as to receive remuneration for the use of the work. This is believed to follow the so-called property model of copyright, in which it is presumed any relevant use of a work is covered by the scope of the right.

The Act does not provide for an exhaustive list of fields of exploitation on which the work can be used and which can be transferred to another party. The Act does, however, exemplify certain fields of exploitation. These include:

  • within the scope of fixing and reproduction of works – production of copies of a work with the use of specific technology, including printing, reprographics, magnetic fixing and digital technology;
  • within the scope of trading the original or the copies on which the work was fixed – placing on the market, lending for use or rental of the original or copies; and
  • within the scope of dissemination of works in a manner different from defined above – public performance, exhibition, screening, presentation and broadcasting as well as retransmission, and making the work publicly available in such a manner that the end-user can access it at a place and time chosen by themselves.

If (when) a new field of exploitation is established, the rights to use the work and dispose of this right, as well as to receive remuneration for the use of the work in this particular field, are all vested in the original rights-holder. As a rule, the original rights-holder is the author of a work. Two exceptions to this rule exist in Polish law. Firstly, unless otherwise stated in an employment agreement, the employer is the original rights-holder of rights to computer programs created by their employees within the scope of their employment. Secondly, the producer or publisher is the original rights-holder of rights to a collective work.

Authors’ economic rights expire:

  • provided that the author was the original rights-holder – after the period of 70 years following the author’s death has lapsed (the 70-year period begins on January 1st of the year following the year of the author’s death); in the case of joint authorship – following the death of the last surviving co-author;
  • when the author is and remains unknown – after the period of 70 years following the work’s first dissemination has lapsed;
  • provided that the author was not the original rights-holder – after the period of 70 years following the work’s first dissemination has lapsed (if the work has not been disseminated – following the work’s creation);
  • as regards audio-visual works – after the period of 70 years has lapsed, following the death of the last of these persons: main director, screenwriter, dialogue author, composer of the music written for that audio-visual work;
  • as regards works that are both literary and musical – if the literary work and the musical work have been created especially for use in this literary, musical work – after the period of 70 years has lapsed following the death of the last of these persons: the author of the literary work or the author of the musical work.

Economic rights can be contractually transferred or licensed to another person. There are, however, numerous limitations as to the provisions of such contracts.

Firstly, the contract needs to indicate expressly the fields of exploitation on which the work can be used by the buyer (licensee). It follows that the contract cannot apply to fields of exploitation that are not yet known (established) on the date when the contract is made. What is more, the contract cannot state that the author transfers (licenses) the rights to all of their works or their works of a certain type which shall be created in the future.

The intent to transfer the rights must be expressly stated in the agreement. Otherwise, it will be assumed that the author has only licensed their economic rights.

The transfer of the author’s economic rights requires a contract in written form. The same is true for an exclusive licence. Unless the contract states otherwise, the licensee cannot grant a sub-licence.

The author’s economic rights are transmissible upon death, according to the general principles of the law of succession. Unless the deceased has left a testament, provisions of the Civil Code of 23 April 1964 dictate who inherits the economic rights. The only exception to the above rule is the regulation of Article 42 of the Act. According to general inheritance law, when no relatives (statutory successors) of the deceased can be identified and no last place of residence of the deceased in the Republic of Poland can be established (or when the last place of residence was abroad), their rights shall be acquired by the municipality of their place of residence or the State Treasury. However, if the author’s economic rights to a work are subject to joint authorship, these rights are instead acquired by the surviving co-authors in proportion to their shares.

In contrast to an author’s economic rights, the author’s moral rights are always acquired by the author at the moment the work is established (created). There is no comprehensive list of moral rights granted to the author. However, the Act exemplifies some of them. These include:

  • the right to be disclosed as the author;
  • the right to be indicated as the author by name or pseudonym or to share the work anonymously;
  • the right to the integrity of the work’s content and form as well as to the work’s proper use;
  • the right to decide on the work’s first communication to the public; and
  • the right to oversee how the work is used.

Other moral rights can be distinguished, provided that their goal is the protection of the bond between the author and their work.

Since only the work’s author can be the holder of the author’s moral rights, their duration cannot be differentiated based on that particular factor. Since all moral rights have the same root and purpose (protection of the bond between the author of their work) their duration is identical.

According to Polish law, the author’s moral rights cannot be limited and never expire, even after the author’s death.

Moral rights are not alienable and cannot be transferred or limited in any way. It may, however, be possible to authorise another party to exercise these rights in the author’s name.

Moral rights are not transmissible upon death; however, they also do not expire. Unless the author expressed differently, after their death their moral rights can be exercised by their spouse. In the absence of the spouse, moral rights can be exercised, in order, by the author’s descendants, parents, siblings or siblings’ descendants.

Unless the author expressed differently, after their death a CMO that managed the author’s economic rights is also entitled to sue for the protection of that author’s moral rights.

As a general rule, until a person has come of age (is 18 or has got married) their rights can only be exercised by their statutory representatives/legal guardians (usually parents). The validity of all contracts they enter into (including transfer or licence of the author’s economic rights) is contingent on the consent granted by the legal guardians. Shall any such contract exceed the scope of ordinary management, it cannot be entered into without the permission of the Guardianship Court.

Polish law provides for numerous provisions regarding the rules on transferring or licensing the author’s economic rights. The licensing contract constitutes a clearly distinctive type of contract. One can argue that due to certain additional requirements, the contract for the transfer of economic rights also constitutes a separate type of contract. However, it is not specific enough to be regarded as completely autonomous (the transfer can take the form of, for example, sale, donation or exchange).

The existence of specific regulations regarding the transfer or licensing of copyright does not preclude the parties from making use of other forms of contracts that they deem suitable for their economic purposes. Certain regulations that limit the parties’ contractual freedom nevertheless apply to those contracts as well (such as the obligation to indicate expressly the fields of exploitation covered by the contract).

Apart from these general rules (such as that the contract cannot apply to fields of exploitation that are not yet known on the date when the contract is made and that the contract cannot state that the author transfers/licenses the rights to all of their works or their works of certain type, which shall be created in the future) the following characteristics are essential:

As regards the transfer of rights:

  • Written form is required under the pain of nullity;
  • The intent to transfer the rights shall be expressly stated in the agreement;
  • Unless expressly stated otherwise, for the transfer of rights the author is entitled to remuneration;
  • Unless expressly stated otherwise, remuneration is due for using the work on each separate field of exploitation; and
  • The transfer of rights can be limited in time, eg for two years.

As regards the licence:

  • Under the pain of nullity, written form is required for exclusive license;
  • Unless the contract states otherwise, the licensee cannot grant a sub-licence;
  • Unless expressly stated otherwise, for the licence the author is entitled to remuneration;
  • Unless expressly stated otherwise, remuneration is due for using the work in each separate field of exploitation;
  • Unless expressly stated otherwise, the licensee is entitled to use the work in the territory of a country where they have their place of residence (registered office);
  • Unless expressly stated otherwise, the licence is not exclusive; and
  • Unless expressly stated otherwise, the exclusive licensee is entitled to sue for infringement of copyright.

In accordance with Article 4, section 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Polish law states that placing an original or a copy of a work on the market within the territory of the European Economic Area shall exhaust the right to distribution of such copy within the territory of the Republic of Poland. This exhaustion does not apply to lending for use or rental of the original or copy thereof.

Polish law has not yet introduced any specific regulations that deal directly with rights arising from the information society unless such regulations are required by the European Union. The courts and legal practice tend to follow the decisions and guidelines of the Court of Justice of the European Union.

Polish law does not expressly introduce a synchronisation right. Nevertheless, since both the author’s economic (as regards fields of exploitation) and moral rights are only exemplified in the Act, such a right without a doubt exists under current regulations. It is usually assumed that synchronisation may require the consent of both the author (since in some situations it may be unclear whether synchronisation constitutes “proper use” of the work) and the rights-holder – provided they are different persons. Unless the author entered into a contract with a CMO under which they transferred the right to exercise their copyright, this right is exercised according to general regulations concerning copyright.

There is a collective rights management system in Poland. It is currently regulated by the Collective Management of Copyright and Related Rights Act of 15 June 2018 (earlier by other acts), which allows for the existence of several CMOs. Moreover, it is possible for several CMOs to manage the same category of rights of the same category of rights-holders. There is no limitation as to the rights that can be managed by CMOs.

The main principles of the Polish collective rights management system are as follows:

  • The minister responsible for culture and protection of national heritage grants permission to establish a CMO in the form of an administrative decision;
  • CMOs can only manage rights that fall within the scope of the permission granted by the minister;
  • The CMO’s right to manage copyright can stem from a contract or statutory provisions;
  • Certain rights of the authors can only be exercised through CMOs (such as the right to additional remuneration for the showing of audio-visual works in movie theatres);
  • A CMO cannot without important reasons refuse to manage rights that fall within the scope of the permission it was granted;
  • A CMO is obliged not to discriminate between rights-holders, irrespective of the legal grounds on which it manages copyright; and
  • It is presumed that a CMO is authorised to manage copyright or related rights collectively within the scope of the permission it was granted, as well as sue for infringement thereof.

Due to practical difficulties, certain rights of the authors can only be exercised through CMOs (such as for example the right to remuneration for the projection of audio-visual works in movie theatres). It is also much easier for parties interested in using copyrighted works to contact the CMO and negotiate the terms of licence than to contact each individual rights-holder. Moreover, thanks to numerous legal presumptions regarding the CMOs’ authority to act in the rights-holders’ name, the CMOs are entitled to manage rights of unknown authors as well as authors who have not yet contacted them on a negotiorum gestio basis.

In theory, competition between CMOs is enabled since several CMOs can manage collectively rights of the same type, belonging to the same rights-holders. In practice, usually only one CMO manages rights of a certain type. The market position of a typical CMO is thus dominant (factual monopoly). Under Polish regulations, CMOs are considered entrepreneurs for the purposes of antitrust laws and need to abide by general competition rules (without detriment to further obligations set forth by specific statutory provisions). CMOs are required to act in the form of an association, so rules concerning these legal entities govern such aspects as transparency or entry into the public register.

No response provided.

The Polish legal system does not provide for a fair-use clause or similar regulation. Instead, a comprehensive list of exceptions to copyright – permitted use – has been introduced by the legislator, as is only possible under the relevant EU law. The list is quite extensive and the regulations are detailed. However, it is often considered imprecise and problematic. What is more, this list can be further narrowed if in the circumstances of a particular case, permitted use would violate the normal use of such work or otherwise violate the author’s legitimate interests (in such a case the exception does not apply even though it is formally acknowledged by the Act). Polish courts do not have the freedom to introduce new types of permitted use via case law.

Main exceptions from copyright provided for in the Act cover:

  • personal use (in theory this covers all particular economic rights);
  • temporary reproduction having transitory or incidental nature, such reproduction having no independent economic significance and being an integral part of a technological process (cover the right of reproduction);
  • fixing (recording) works by radio and television organisations (covers the right of reproduction);
  • concurrent and integral retransmissions to a limited number of end users located either in one building or in up to 50 family households (covers the right of retransmission);
  • use of certain works for informational purposes (covers the right of reproduction, dissemination and distribution);
  • use for specific purposes by certain educational institutions, universities, research institutes and other organisations (in theory this covers all particular economic rights);
  • quoting, parody or other forms of caricature (in theory this covers all particular economic rights); and
  • use of works during religious or state festivities (in theory this covers all particular economic rights).

Such use is lawful as long as all use of a work (copying, lending etc) is only carried out for personal use. Personal use covers use of single copies of works by a circle of people bound by a personal bond, in particular relatives, in-laws or friends. The law states that personal use does not authorise someone to build a house according to an architectural work or to use electronic databases unless this use is limited to scientific purposes.

The scope of statutory personal use is broad and is believed to apply regardless of the legality of the source copy. This interpretation is probably impossible to maintain in the light of the CJEU’s case law.

Polish law provides for the freedom of panorama. It is permitted to disseminate all works that are permanently exhibited on publicly accessible roads, streets, squares or in gardens: however, not for the same purpose. It is generally agreed that public access does not necessarily mean that such access must be free of charge.

Permitted use covers all temporary reproduction having a transitory or incidental nature, provided that such reproduction has no intrinsic economic significance and constitutes an integral and unavoidable part of a technological process whose purpose it is to enable either (a) the transmission of work in a communication and information system between third parties through an intermediary; or (b) lawful use of the work. Other than that, no specific exceptions have been introduced. It is often possible to argue that a typical intermediary does not use copyright works and this eliminates the risk of direct copyright infringement.

It is permitted to use works for the purposes of parody, pastiche or caricature to the extent justified by the rules of such creative activity.

Polish law does not explicitly deal with possible conflicts between copyright and human rights. As far as freedom of speech is concerned, the rule would be that the freedom to express oneself and one’s views or opinions does not generally include the freedom to use works created by other people. There are, however, exceptions. While their existence is commonly recognised, the appropriate legal tools are far from obvious. Sometimes it would be possible to invoke the abuse of right or directly refer to the Constitution or the ECHR. Exceptions may involve, for example, publicly using (disseminating) a graphic symbol that carries a specific meaning or message. In these situations courts may try to qualify such use as one of the instances of permitted use (eg permitted quoting).

When it comes to right of information, few permitted use regulations govern this matter. The scope of exceptions from copyright is broader with regard to works that relate to new or recent events of political, social, religious or economic significance.

Polish law regulates the following related rights:

  • Right in artistic performance (originally owned by the artistic performer);
  • Right in phonogram (originally owned by the phonogram’s producer);
  • Right in videogram (originally owned by the videogram’s producer);
  • Right to programme broadcast (originally owned by the radio or television broadcasting organisation);
  • Right to first editions (originally owned by the publisher who first lawfully published or otherwise disseminated a work whose copyright expired without its copies ever being publicly available); and
  • Right to a scientific or critical edition (originally owned by the person who – after the expiry of copyright – prepares a scientific or critical edition of a work, and which itself does not qualify as a work within the meaning of copyright law).

Related rights are alienable and transmissible upon death according to general regulations provided for in the Civil Code. The only and partial exception to this rule includes the right in artistic performance whose transfer or licensing is subject to some of the provisions (restrictions) that concern the transfer or licensing of copyright.

Right in artistic performance is the only related right that comprises both economic and moral rights. All other related rights are limited in their scope to certain economic rights. These economic rights differ between the types of related rights; however, some are common to most or all of them. These rights include, inter alia, the right of reproduction and right of distribution (placing on the market).

The collective rights management system directly applies to related rights. There are currently several CMOs that have been given permission to manage related rights.

Polish law provides for specific regulations regarding the transfer or licensing of related rights only in relation to the right in artistic performance. The legislator has decided that the transfer and licensing of this right should in general follow the same principles and be subject to the same restrictions as the transfer or licensing of copyright. These have already been described in detail above.

According to Article 100 of the Act, all exceptions to copyright apply appropriately to related rights.

Copyright consists of the author’s economic and moral rights. Both of these rights can be infringed, and their infringement takes different forms. For example, any use of a copyrighted work that does not qualify as permitted use constitutes an infringement of economic rights. On the other hand, only such use of work that violates the author’s bond with the work constitutes an infringement of moral rights, irrespective of whether or not this behaviour infringes economic rights (and vice versa).

Infringement of copyright does not require fault on the part of the infringer. A possible defence can consist in proving that use of the work – in case of economic rights – constituted permitted use, was not unlawful because appropriate authorisation to use the work was granted, was not unlawful because the economic rights expired, or simply was not unlawful because use concerned a creation that does not qualify as a work. As regards moral rights, the alleged infringer should prove that the use of one’s work did not violate the bond between the author and their work.

Whenever the court requires the infringer (or alleged infringer) to share certain information necessary to establish the fact and/or scope of the infringement, it shall take into account the need to protect the legitimate interests of the infringer, such as their privacy.

The rights-holder is entitled to initiate certain urgent proceedings (eg, seek a preliminary injunction or request information from the alleged infringer) as well as to proceedings on the merits, which can be brought before the competent court. Some alternative ways to protect the rights-holder’s copyright also exist. For example, the rights-holder may apply for a conciliation hearing.

Related rights benefit from the same remedies and are subject to the same types of procedures as copyright. It should be noted that only the right in artistic performance benefits from the protection granted by provisions regarding authors’ moral rights, since other related rights consist only of economic rights.

Moral rights can be enforced by the author or artistic performer (since these rights are not alienable and not transmissible upon death, no other person can hold them) or on their behalf by authorised persons. The law provides for specific regulations in that regard aimed at facilitating effective protection of moral rights.

According to general regulations of the Code of Civil Procedure of 17 November 1964 (Article 189) any person who has demonstrated appropriate legal interest can demand that the court establish the existence or non-existence of a certain legal relationship or right. On this legal basis, it may be possible for an alleged infringer to file for a declaration of  non-infringement.

Copyright proceedings (proceedings regarding infringement or conflicts between co-authors regarding the management of their copyright) shall be brought before courts according to the general rules governing jurisdiction. By default, the court based on the place of residence of the defendant shall have jurisdiction. The action may also be brought before the courts based on the place where the infringement took place and where the damage occurred. Intellectual property cases may not be brought before district courts but need to be heard in the first instance by regional courts.

In the case of infringement of economic rights, the infringer and the rights-holder are the parties to the proceedings. However, the exclusive licensee can also initiate such proceedings against the infringer within the scope of their licence, provided that the licence agreement does not state otherwise. When the copyright is collectively managed by a CMO, protection can be sought by the appropriate association.

In the case of moral rights, the infringer and the author (artistic performer) are the parties to the proceedings. After their death the law indicates the persons entitled to sue for protection (spouse, descendants, parents, siblings, siblings’ descendants, CMO or other organisation).

Third parties do not generally participate in infringement proceedings. With regard to the right of information exercised against non-infringers, these non-infringers (third parties) become parties for the purposes of court proceedings. A third party such as a witness may be disciplined, mostly by way of pecuniary fines, should he or she fail to appear before court or submit a piece of evidence or a document requested by the court.

Parties to the proceedings need to cover their costs. These include fees due for most procedural actions as well as the court’s expenses. Should the party lose the proceedings, the principle is it should also cover the expenses of the winning party.  There are, however, limits of recoverable costs of lawyers’ fees and these are so low that practically each party pays its own costs.

Polish procedure requires the plaintiff to explain whether or not the parties tried to reach any amicable resolution of the conflict before the proceedings were initiated. The court cannot dismiss the claim on the grounds that no attempt has been made to resolve the conflict. It is not mandatory to wait for any period of time before initiating infringement proceedings.

Rights-holders are generally entitled to two substantial measures, which they can request for during or even before the proceedings on the merits have begun.

Urgent measures include (a) the right of information, where the (possible) plaintiff requests information that shall enable them to accurately formulate the claim that they want to bring to court; and (b) the right to seek a preliminary injunction. Applying for information requires demonstrating legal interest on the part of the applicant. In the case of preliminary injunction, the applicant shall substantiate both their legal interest and their claim. In both cases, if the measure is granted to the applicant before the proceedings on the merits are initiated, the court decides on the date before which the proceedings on the merits need to be initiated by the applicant (no later than two weeks after the measure has been granted). Failure to comply with this decision results in the measure being cancelled.

The rights-holder is allowed to obtain certain relevant information and evidence from the alleged infringer or third parties. Application for such information can be made to the Court before the proceedings on the merits are initiated or in the course of such proceedings.

The rights-holder is entitled to file for seizure of the infringer’s goods and/or bank accounts (injunction). The requirements are as follows:

  • to substantiate the claim;
  • to substantiate the applicant’s legal interest (legal interest exists if a lack of the injunction shall preclude or greatly hinder the execution of the eventual judgment as well as when such a lack shall otherwise preclude or greatly hinder achieving the purpose of the proceedings); and
  • for the court to rule that such a measure is justified, considering the applicant’s need for protection but also does not burden the obligor more than necessary.

As long as the law recognises the intermediaries as liable for the infringement – either directly or as auxiliaries/inciters etc (depending on each particular case) – and the applicant demonstrates the general requirements for the measure (injunction), this measure can be granted against them. Poland has, however, not implemented Article 11 of the enforcement directive and Article 8 (3) of the InfoSoc Directive, allowing for measures such as blocking injunctions against intermediaries who are not liable for infringement.

Experts may play an important role in copyright proceedings, provided that the case requires special knowledge, for example when the copyright case involves such works as computer programs. Since the status of “work” and the fact of infringement constitute legal issues, the Court shall

There are no different regimes regarding burden of proof for particular types of copyright.

The rights-holder may request that the infringer:

  • ceases the infringement;
  • eliminates the effects of the infringement;
  • compensates the damage (either according to general civil law provisions or as a set payment of double the remuneration which would be appropriate for granting a licence necessary for the use of a work in such a manner); and
  • surrender the benefits acquired to the work’s use (account of profits).

In addition to the above, the rights-holder may request that the infringer makes an appropriate declaration to the public regarding the fact of the infringement or publicly communicates the judgment.

According to the general provisions of the civil procedure, the losing party is generally required to cover the expenses of the prevailing party. However, there are limits as to how much of the attorney fees must be reimbursed and these limits are extremely low (well below the market fees).

If some sort of amicable resolution is not reached, proceedings last three years on average (not including possible cassation appeal proceedings before the Supreme Court). It is important to stress that the duration of proceedings depends heavily on the venue (courts in the largest cities are usually overburdened) and on the specific circumstances of the case.

If the defendant does not carry out the court decision willingly, additional enforcement proceedings need to be initiated by the plaintiff. These may require the rights-holder either to contact a bailiff (court enforcement officer) or the court, depending on the type of obligation imposed by the judgment. The court may then impose fines on the infringer until they carry out the judgment in full. If the obligation requires publishing a statement or the judgment, the rights-holder may be authorised to publish it and demand costs from the infringer.

Copyright infringement can constitute a criminal offence (the Copyright Act contains an extensive chapter on criminal sanctions). Depending on the type of the infringement, the rights-holder’s application to prosecute the infringer may be necessary. The case is then processed according to the code of criminal procedure.

Polish regulations implement Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003. An appropriate application by the rights-holder to the customs officers needs to be made in which the rights-holder provides information inter alia on the infringing good’s characteristics, on its packaging’s characteristics, their place of production as well as on the entities believed to participate in the infringement. Mostly similar information on the original product is required (to distinguish between the two).

There are no special provisions regarding the appellate procedure for copyright proceedings in Poland.

According to Polish law, appeals in all cases may involve both the legal and factual review of the case.

New evidence before the court of second instance may be brought only if it could not be produced before the court of first instance or if the need to bring it before the court only manifested itself after the proceedings in the first instance.

ADR is not compulsory in copyright cases. Due to conflicting interests of the parties, and legal uncertainty regarding the possible outcome of court proceedings, parties are seldom inclined to participate in ADR. Usually the rights-holder will require the infringer to stop their actions in a cease-and-desist letter. In the course of pre-trial correspondence, a settlement offer will usually be presented; however, it is usually not accepted by the alleged infringer since it more often than not requires them to share some amount of information on their economic activity (profits, trade partners etc).

Traple Konarski Podrecki & Partners

Królowej Jadwigi 170
30-212 Cracow
Poland

+48 12 426 05 30

+48 12 426 05 40

office@traple.pl www.traple.pl/
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Traple Konarski Podrecki & Partners has a IP team of 24 lawyers providing legal assistance in the field of copyright and related rights to operators in the mass media; advertising and marketing; science and innovation; the internet; the creation and production of computer games; the creation and implementation of IT solutions; culture, arts and entertainment; audiovisual production; industrial design; and architecture and construction. The firm advises authors, businesses, local governments and academic institutions that use copyrighted works and items protected by related rights in their activities. Its experts conduct training and workshops on copyright law, press law and new technologies law, including internal training and workshops for specific companies, adapted to the legal and business environment in which the companies operate. The firm, which has its key office locations in Warsaw and Cracow, has earned top positions in local and international law firm rankings within the categories of IP, TMT and competition.

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