Jan Błeszyński
p. 6
Monika Czajkowska-Dąbrowska
p. 29
Marian Kępiński
p. 45
Ryszard Markiewicz
p. 56
Andrzej Matlak
p. 71
Aurelia Nowicka
p. 84
Urszula Promińska
p. 102
Joanna Sieńczyło-Chlabicz
p. 112
Rafał Sikorski
p. 129
Ryszard Skubisz
p. 145
Stanisław Sołtysiński
p. 160
Andrzej Szewc
p. p. 191
Elżbieta Traple
p. 200
Jan Błeszyński
Evolution and perspectives of the Polish copyright law
Copyright law has a rich tradition in Poland. Initially within the current territory of Poland, systems of annexing states (Germany, Austria and Russia) were in force. After the rebirth of the Polish State in 1918, one of the most urgent tasks was unifying the laws. In 1920 a Commission which was given the task of drafting copyright law was appointed. On 29 March 1926, the draft prepared by the Commission was adopted. This act, commonly judged as very modern, took into account the achievements of the then most advanced copyright laws and met the minimum requirements of the Berne Convention, which had been ratified by Poland in 1920. The goal of our law, although created during a period of economic crisis, was to provide authors with a high level of protection. It was expressed by the wide and synthetic definition of a work, broad recognition of author's economic rights, which were shaped in a way similar to ownership. From widely recognized exclusivity of the creator, which includes deciding whether a work is to be released and how the work is to be used, there were exhaustively defined exceptions, including the so-called allowed use of works, appearing in two groups: demanding payment of remuneration and allowing for the use of works without payment. The protection of economic right lasted for the duration of life and 50 years after the death of the author or co-author who survived the others. The distinguishing feature of the Polish act of the interwar period was also granting the author universal (i.e. regardless of the existence or the expiry of the protection of economic rights) protection of creators rights, set forth as a non-transferable, being not subject to waiver, as well as continuing after the death of the author and then exercised by the author's next of kin.
This act was in force until 1952, when for political reasons copyright law was adjusted to the political and economic reality of those days. Amendments to the Copyright Act itself were of relatively minor character, however. The most important one was limiting the protection for economic rights to 20 years after the author's death and annulling the legal effects of publishing agreements. It was followed by new systemic rules: actual monopoly of the State in the economic sphere and restrictive political censorship, which in fact were in place for all market and social relations.
The Act of 4 February 1994, which is in force at the moment, was drafted in the reality of a new regime, that is, of free market and abolition of censorship. The main solutions dealing with the substance of the copyright law were preserved. The act also took into consideration neighbouring rights. The provisions regulating transfer of copyright were extended. The act introduced unlimited tradability of author's economic rights and, first and foremost, regulations on collective management. The status of collective management organization, together with a number of privileges facilitating the pursuit of protection with regard to the use of works in collective management (information claim, presumption of authorization to pursue protection, authorization to apply for approval of tables of remuneration, which become semi-imperative), were defined by the statute. In specified cases, the statutory agency of such organizations has been introduced, additionally a list was compiled of the cases where the right to remuneration cannot be transferred or attached and must be pursued via appropriate collective management organization. The economic protection serves the author or his/her legal successors inter vivos or mortis causa throughout the author's lifetime and 70 years after the author's death (50 years after the author's death at the beginning). The Polish copyright law is harmonized with requirements set not only by the Berne Convention and TRIPS, but by EU directives as well, except for the newest ones, in particular, on collective management and orphan works. Legislative work is in progress in this regard.
The development of copyright and the level of protection of authors and holders of neighbouring rights in Poland is in the first place strongly influenced by the doctrine developed in various institutions: at the beginning at the Jagiellonian Univeristy in Cracow (UJ), which with regard to copyright law has the longest and the richest tradition at the beginning due to prof. S. Grzybowski and then to A. Kopff and J. Serda. The issues of copyright were developed in parallel developed at the University of Poznań (UAM) by J. Górski, at the Maria Curie Skłodowska University in Lublin (UMCS) by S. Buczkowski and the University of Warsaw (UW) by W. Czachórski. Currently there are subsequent institutions conducting research in this field, in particular universities in: Białystok, Łódź, Wrocław, Katowice and Opole. These and other institutions hire their own professors and have become research centres. Detailed analyses of the existing situation in this regard is beyond the scope of this study, whose main goal is to show the traditions within copyright in Poland.
The growth of research in the copyright law owes a lot to the Max Planck Institute in Munich, which during 1970s and 1980s provided help, first of all through access to its resources. There were two persons strongly involved in cooperation with the Polish academia and in helping individual research workers: its Managing Director - F.K. Beier and A. Dietz.
At present the basic task to be carried by the Polish legislator is adjusting the Copyright Act to changes resulting from technical development, which influences the ways of disseminating works, in particular by introducing new digital ways. It has a special meaning with regard to collective management, in particular for Internet users. The work on initial draft specifying amendments to be introduced in the existing Copyright Act is in progress at the moment. The wide social debate with this regard, with participation of all interest group, is expected. The Ministry of Culture and National Heritage is the actor which should balance different trends and search for solutions, taking into consideration balanced interests of authors, performing artists, producers and other entities disseminating works and objects of neighbouring rights on the one hand with the interest of public access to creativity. Thanks to its authorization, the Ministry is in a position to prepare the draft and take it to the Parliament.
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Monika Czajkowska-Dąbrowska
Selected issues concerning collective copyright management against the background of EU law
This article discusses selected problems of collective management against the background of EU law, with special emphasis on the recently adopted Directive 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. The first problem is the permitted scope of national legislators' introducing collective management by statutory law, and especially establishing mandatory collective management regardless of the author's will. The Polish Act on Copyright and Related Rights (ACRR) contains many provisions whereby collective management is introduced regardless of the rightholders' will. It seems that such a limitation of authors' rights as exclusive ones should be based on international agreements, while collective management of the relative right to remuneration may also result from acquis communataire. In this context, particular interpretation problems arise with respect to Art. 21(21) ACRR.
The second problem concerns the author's choice of the collective management organization to manage his or her rights. The old system of collective copyright management in international relations, created within the framework of CISAC and based on the principle of double territoriality, no longer met the requirements of contemporary methods of disseminating works (especially via the Internet). For over a decade, attempts were made to develop a management model going beyond the national territory, in particular granting multi-territorial licenses to use works on the Internet (e.g. IFPI Simulcasting Agreement). Commission Decision C(2008)3435 of 16 July 2008 questioned three principles of collective management applied by CISAC and the associated organizations, including also Poland's ZAiKS. To the extent of repealing one of them, the so-called territorial clause, Commission Decision was contested by CISAC to the CFI, whose judgment in case T-442/08 repealed it in that part. Another aspect of applying the territorial clause in collective management concerns the relationship between CMOs and users of works. So far they could only acquire licenses only from domestic organizations. And this practice was discussed in a recent CoJ judgment dated 27 February 2014 in case C-351/12 OSA v. Mariánské Lázně, in which the Court held permissible in the light of the then state of European law the provisions of the national (Czech) law that allowed the operation of only one CMO in the country, thus preventing the users from acquiring licenses covering said territory from foreign organizations. After adoption of Directive 2014/26, which grants the rightholders the right to choose the collective management organization to which they entrust their rights in a specific territory, the old rules of exercising collective management should change.
The third problem which becomes current in the light of Directive 2014/26 relates to the grounds for collective management, in particular the grounds resulting from the act of the author entrusting his or her rights. The existing Polish system of extremely liberal permits from the minister of culture to exercise collective management, in conjunction with the legal presumption from Art. 105 ACRR, which system is to be based, in the light of the Polish Supreme Court judgment of 1999, on permits, does not meet, according to this writer, EU standards concerning contractual grounds for collective management.
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Marian Kępiński
New proposal of Directive on trade marks and its possible consequences for the Polish legislator
This article discusses the proposed amendments to provisions on trade marks contained in the new proposal of Directive to approximate the laws of the Member States relating to trade marks. These amendments are to be introduced in parallel to amendments to the Regulation on the Community trade mark. This means also amendments to this Regulation. The purpose of the new regulations is to speed up the process of trade mark registration, a new specification of the designations which may be used as trade marks, extension of the scope of protection for trade marks and closer cooperation between the OHIM and national offices.
The basic change in the definition of trade mark is giving up the requirement of graphical presentation of the trade mark when it is registered. This means, at the same time, extending the scope of designations which can be protected. The proposal also places emphasis on the prohibition of registering designations in whose respect applications for protection are made in bad faith.
The exclusive right in a registered trade mark is to cover also transit of goods and the use of the mark in the business name or internet domain. The holder of rights in registration will, like currently, have the obligation to use the mark, but will additionally have to prove using the mark when requested to do so by a person infringing the right in registration.
The proposal clearly suggests that national offices should not conduct searches concerning relative obstacles to registration. Such a procedure without examining relative obstacles is to accelerate the registration procedure.
The article contains also suggestions of amendments to be introduced in Polish laws as a consequence of the new directive being passed.
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Ryszard Markiewicz
Svensson and the Polish cause
This article presents three issues: (a) the contents of CJEU judgment of 13 February 2014 in case C-466/12 Svensson and why the reasons are wrong; (b) certain problems relating to interpretation of the Polish law in line with the Directive in the form determined by the judgment, including the general questions and suggestions and (c) why copyright-related judgments of CJEU are valuable and necessary for the Polish copyright law, even though they are often based on mistaken reasoning, flawed constructions and beyond the Court's powers.
It was also assumed that 'applying' a judgment of CJEU should comprise not only the operative part, but the whole of it, in any way, also those parts which justify or supplement the operative part. As for the Svensson judgment this concerns the requirement of 'new public' and the condition, which is not made sufficiently express, that the initial communication to the public should not infringe copyright. In this paper it is argued that if it is theoretically possible to achieve direct and full approximation of national law with the directive in the meaning determined by the CJEU, it is also permissible to adopt an equivalent construction in this place, one which is more appropriate for the national copyright statute. Because once the directive orders the Member States to achieve a certain result, leaving discretion as to the forms and measures, this principles applies the more to the directive's interpretation by the CJEU.
In the light of these findings, this writer posits the view according to which a link to a work made available on the Internet does not constitute use of the work. However, if there is no culpable (in the sense of awareness or culpable lack of awareness that making available online the work to which the link redirects is illegal) placing of the link to a work illegally uploaded on the Internet (or with breaking the measures preventing access to it or a work which was removed from the original place) there is an indirect infringement of copyright in the form of aiding and abetting (Art. 422 of the Civil Code). The weakness of this interpretation is the fact that it follows indirectly from the Svensson judgment that id the linked work is directed at 'new public' the act is unlawful, even if there is no guilt on the part of the person placing the link. But liability for non-culpable linking is just a consequence of the reasoning adopted by the CJEU; it was not the subject-matter of the question or of CJEU's considerations. In the final part, the paper indicates that case law of the CJEU in cases involving copyright is particularly needed in Poland. This is so because the Polish legislator isparticularly slow to act in this field, limiting itself (at most) to the necessary implementation of EU law. It seems, however, that the main reason for this state of affairs is the existence of influential interest groups lobbying in the sphere of copyright, with lack of fundamental direct benefits (mainly economic ones) for the state resulting from amendments to copyright law. This causes the government's inertia in promoting the desired amendments to copyright law, particularly around election times.
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Andrzej Matlak
Legal protection of technical measures protecting works against the background of Court of Justice judgment of 23 January 2014 in the Nintendo case
Technical progress, in particular the emergence of digital technologies, created many possibilities of using various technical measures protecting works, which may to some extent limit the actual availability of intellectual assets, while supplementing the legal measures protecting the rightholders. In practice the measures which are now used the most frequently are technical measures which limit the very access to works or a certain way of using them (e.g. by preventing ordinary familiarization with the work of copying it).
The use of technical measures protecting works introduces new relationships between the rightholders and those using the protected goods. In this area many doubts arise from the legal point of view. They concern both the very legal nature of existing regulations and their detailed scope. The basic theoretical issue is determining whether the provisions which grant protection to technical measures which prevent access to protected goods or their copying may be placed in the substance of copyright law and, if not, what other legal regime could contain them.
This writer presents the thesis that contents of CJEU judgment of 23 Jan. 2014 (Nintendo) seem to indicated that the interpretation of Art. 6(3) of Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society adopted in it is hard to reconcile with the conception of 'copyright' nature of protection for technical protective measures. If follows from an analysis of the assessed technological measures that generally speaking they can hardly be identified with any specific work. They restrict the possibility of becoming familiar with various intellectual goods stored on material media (they prevent playing on consoles MP3 files, films and games or other multimedia content which does not come from Nintendo). Basically, these security measures do not concern a specific work, but many works (fixed on digital media), which were encrypted using the same technology.
According to this writer, the contents of the analysed judgment of the Court of Justice support the thesis that the problem of removing technical protection measures should not be perceived in terms of absolute rights, but a certain kind of 'actual authority' over a right enjoyed by a certain person or an object embodying this right. As part of that 'authority' it would be possible to protect the rightholder's interests, which possibility with respect to intangible goods might take the form of e.g. protecting access to them using various technical measures to which the legislator accords some protection. Thus protection against removal of technical measures essentially need not be identified with a specific protected object, which in turn is a fundamental element if protection of works on the basis of the construction of absolute rights.
The protection in question concerns a specific state of facts or norms of behaviour determined by the legislator, like it is the case of provisions on combating unfair competition.
Adoption of the proposed conception resolves a number of theoretical and practical problems which accompanied the attempts to locate the regulation on protection of technical measures within the author's monopoly. These were in particular: determining the entity entitled to pursue claims, defining the substance of the right relating to technical protective measures and its potential transferability, determining the relationship between copyright or related rights in a specific intellectual asset and the right to protection for the protective measures relating to said asset, the issues of contractual disposition of the right to protection of technical protective measures.
It will be relatively easy to determine the entity entitled to pursue claims concerning protection of technical protective measures: this will be any holder of copyright or related rights (e.g. the author, his/her legal successor or licensee) who actually applied the protective measure or had it applied. If we adopt the conception discussed here, then the object and scope of protection of technical protective measures are considered on separate planes. But we should remember that while determining if a given protective measures enjoys the protection in question, we should find out whether the intellectual asset for which it was applied is a work or object of related rights at all and if so whether at the time of the rightholder making the relevant claims the given intellectual asset is still protected.
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Aurelia Nowicka
Inventions and their protectio - selected legal and practical aspects
This article presents three groups of issues in the field of patent law. Their common feature is their close link with the legal order of the European Union.
As part of the first group of issues the current status of matters relating to creation of unitary patent protection in Member States which participate in enhanced cooperation, which was introduced by Regulations (EU) No 1257/12 and No 1260/12 is presented. In particular, there is a discussion of the progress in meeting the conditions for the entry into force of the Agreement on a Unified Patent Court. On the day of entry into force of this international agreement, not only will the Unified Patent Court be set up, but also the aforementioned Regulations No 1257/12 and No 1260/12 will start to apply. European patents granted from that date will have the option, upon request of the patent holders, of achieving unitary effect, consequently they will accord the uniform protection referred to in Regulation No 1257/12. The substance of exclusive rights granted by both European patents with unitary effect and 'classical' European patents will be determined, by virtue of the reference in Art. 5 of Regulation No 1257/12, pursuant to Art. 25-28 of the Agreement on a Unified Patent Court.
The second group of issues covered by this article concerns the 'Bolar exemption' and the problems relating to its interpretation, which became apparent in the adjudicating practice of Polish and German courts. A request for preliminary rulings was submitted to the Court of Justice by Oberlandesgericht Düsseldorf in case C-661/13 Astellas Pharma Inc., concerning the EU regulation on the 'Bolar exemption' (Art. 10(6) of Directive 2001/83/EC). A critical assessment is expressed of the (Polish) Supreme Court's judgment of 23 October 2013 (IV CSK 92/13) concerning the interpretation of the Polish regulation on the 'Bolar exemption' (Art. 69(1)(4) of the Industrial Property Law).
The last, third group of issues, concerns presentation of the standpoint assumed by the Court of Justice in its judgment of 18 July 2013 in case C-414/11 Daiichi Sankyo Co. Ltd. Special attention should be paid to the thesis expressed in the judgment that TRIPS Agreement, including its Art. 27 regulating patentability, belongs to the area of common commercial policy, which is covered by the Union's exclusive competence. As part of analysis of this standpoint, an attempt is made to show its legal importance and consequences, especially with respect to the categories and areas of EU competence, and in the context of deciding whether the provisions of TRIPS Agreement have direct effect.
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Urszula Promińska
Polish trade mark regulation against the background of EU norms - selected issues
The subject-matter of these considerations is limited to selected issues which are important from the point of view of trade mark regulation in the Polish law compared to the standards set by the EU regulation. Firstly, to the general regulations on trade marks contained in the (Polish) Industrial Property Law in the light of EU law. Secondly, to presenting two issues not covered by harmonization and important for trade mark protection. These are the notion of trade mark holder and the issue which can be reduced to the question whether using an unregistered trade mark should be an obstacle to registering a trade mark for a person other than the user?
As for the first issue, we can say that the Industrial Property Law, as a rule, corresponds fairly well to the ratio legis of Directive 2008/95, though its provisions are not always faithful translations. The binding interpretation of the CJEU ensures that norms of national law are interpreted in accordance with the existing standards. Thus one can venture the thesis that problems appearing with regard to trade mark law do not concern only the national norms. They have a general validity and EU dimension. What is another issue is whether the interpretation offered by Court of Justice is always acceptable. Objections are aroused especially by the indecisiveness of the Court of Justice about the concept of trade mark protection. This concerns a fundamental issue whether the Court adopts the 'proprietary' or functional concept. The answer to this question is of key importance, because depending on the adopted philosophy the focus is on protecting different interests.
The qualification of the trade mark holder is not covered by the EU harmonization of trade mark law. It is left to be settled in the Member States' national laws at their discretion. Nevertheless, on the basis of the Preamble and the normative approach to trade mark in the Directive and the Regulation on Community trade mark, one can state that the right in a trade mark is linked to the entrepreneur. A separate issue is the importance of the status of entrepreneur for making applications for granting protection and of the requirement of conducting economic activity using the trade mark on order to retain the right in the trade mark.
As a conclusion from the analysis of the third of these issues, attention should be drawn to the new Directive of the European Parliament and of the Council aimed at approximation of Member States' legislations on trade marks, which, although it does not require deeming unregistered trade marks which were used earlier to be an obstacle to registration, expressly permits indicating such a fact as an absolute obstacle. This opens a discussion about the expediency of including this directive in the Polish trade mark legislation.
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