Bartosz Kleban
p. 5
Joanna Matczuk
p. 36
Marta Sznajder
p. 52
Łukasz Gruszczyński
p. 92
Ewa Nitkiewicz
p. 111
Olena Shynkarenko
p. 137
Magdalena Danek
p. 151
Bartosz Kleban
Permit as the basis of the status and operation of collective management organizations in the EU and Polish law and the practice of courts of general jurisdiction
Obtaining a permit from the minister in charge of culture and protection of the national heritage is a prerequisite for setting up collective management organizations (CMOs) in the Polish law and defines the scope of collective management performed by a given CMO. Analysis of recent case law of Polish courts of appeal reveals that the scope of the permits granted to Polish CMOs is often wrongly questioned. The courts make independent interpretations of CMOs permits and, contrary to the law, replace in this respect the Minister of Culture and National Heritage. This issue requires examination, in particular in connection with the entry into force 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. The EU legislator declared neutrality on the issue of existing CMOs authorization and supervision regimes in the Member States, as long as they are compatible with EU law and do not create an obstacle to full application of the Directive.
This article aims to support the argument that in Member States where there are licensing systems for collective management compliant with the Directive, the content of CMO permits issued before the entry into force of the Directive should remain the base of the legal status of CMOs and should constitute a binding determinant of the scope of collective management. Among other things, this article explains the role of the Directive's recitals in the process of its correct implementation in the scope of collective management, with particular emphasis on the position of the Court of Justice of the European Union in that matter; presents some other provisions of EU legislation that may affect or be considered as directly related to collective management; and contains an analysis of the Polish law and views presented in recent case law of the Polish courts of general jurisdiction. The article calls for the correct application of Polish law, justifying departure from the completely erroneous practice of independent interpretation of CMOs permits by Polish courts, which is also contrary to Directive 2014/26/UE. In the article, there is also a separate subsection devoted to the question whether the permits granted to Polish CMOs may even include the authority to collect payment for: 'rebroadcast' once the 'rebroadcast' is not literally mentioned as a field of explotation in Art. 70 (21) (3) of the Act of 4 February 1994 on Copyright and Related Rights.
The analysis leads to the conclusion that implementation of Directive 2014/26/EU will not result in revolutionary changes in the construction of Polish permits for collective management. The contents of permits granted so far to the Polish CMOs ensure their compliance with EU law and Polish law and do not preclude full application of the Directive. Therefore, these permits should remain the basis of the legal status and operation of CMOs and should constitute a binding determinant of the scope of collective management conducted by a given CMO. Some novelty on the market should be perceived in the introduction in the Directive of a new category of entities - independent management entities (IMEs). Issues related to IMEs, however, go beyond the formal scope of the article and should be considered separately.
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Joanna Matczuk
The right to culture v. copyright law: inevitable conflict or hope of conciliation?
This article aims to outline the relationship between the right to culture and copyright law, as well as its problematic areas. It discusses the issue of conflict between copyright law and the right to culture, asking about the chances for a conciliatory solution to this conflict. Due to its universal and multi-thread nature and the extensive range of topics, this paper goes beyond the framework of the Polish jurisdiction and it aims to draw attention to selected issues rather than analyse the problem in an exhaustive manner. In the introduction, the author describes the background of the conflict, pointing out to the fundamental changes which have taken place in the field of experiencing culture in recent years and referring to selected examples of such changes (i.e. remixing, free licences, computing power services). The author explains the meanings of individual elements of the right to culture, namely culture, right of access to culture and right to participate in culture, juxtaposing them with copyright.
As for the notion of 'culture', the writer points out that works in the sense of copyright law are part of culture, thus for the purposes of the undertaken discussion it is necessary to precisely determine what the category of 'works' includes. Referring to the so-called principle of dichotomy in copyright law and discussing the problems of differences of copyright protection in various countries, the writer explains how difficult a task it is to merely determine whether a given 'element' of culture is covered by the regime of copyright law.
Next, the article touches upon the topic of the relationship between copyright law and the right of access to culture. In this context it is explained how access to culture should be understood in times dominated by the Internet and new technologies. By references to many examples it is demonstrated that the current possibilities of accessing culture through new media pose many tough questions in the light of copyright law.
The next issue relating to the right to participate in culture is presented in the light of freedom of speech and access to information. On examples of selected lawsuits it is indicated that copyright law, in extreme cases, can be an obstacle to development of creativity and can render free access flow of information impossible. In this context the author quotes selected judgments, who show how differently the boundaries of copyright law, including the limits and exceptions, as well as the so-called three-tier test. The problem of moral copyright is also addressed and, among other things, it is indicated that unauthorized use of a work may be an infringement of such rights.
Further on, there is a presentation of the possible approaches to the relationship of copyright law to the right to culture. One of these notions is based on the assumption that there is no need to introduce the right to culture into the legal order, because copyright law, through a system of 'self-regulation' in the form of restrictions and exceptions in a way guarantees itself freedom of speech and access to culture. According to another approach, the right to culture is a right whose limits are determined by copyright law. In the framework of discussion of a standpoint supporting the need for express regulation of the right to culture, using the example of the UK Ashdown case, it is then pointed out that the very introduction of the right - on a par with copyright - will not necessarily guarantee its observance. Summarising, the author points out that ensuring the right to culture is supported not so much by codification of said right, but rather by a thorough reform of copyright law. The author concludes that it is impossible to define and establish the right to culture without reference to copyright law and, vice versa, that copyright law cannot without keeping in mind the cultural needs of information society.
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Marta Sznajder
Patent infringement under the doctrine of equivalents: principles of application
The article presents the principles of application of the doctrine of equivalents as the basis for decision whether an infringement of the patent has taken place. The doctrine of equivalents includes a number of constituent elements which influence the final conclusion as to potential encroachment on the exclusivity conferred upon the patent holder. The analysis of these elements is aimed at explaining the basic principles adopted in the process of the practical application of the doctrine of equivalents, their impact on the assessment of the scope of the patent as well as indicating reasons of discrepancies resulting from the application of the doctrine of equivalents. The article focuses on the theoretical concepts and case law of the countries which apply the Convention on the Grant of European Patents of 5 October 1973, a regulation of critical importance for the creation of the doctrine of equivalents in its present version.
The analysis of the grounds for the doctrine of equivalents and its constituent elements proves that the dissimilarities as to its application in various patent law systems result from attributing diverse importance to criteria of its application. For this reason, in these countries where the alleged intent of the patent applicant constitutes the decisive prerequisite for interpreting the extent of patent protection, the possibility of extending the scope of the patent beyond the wording of the claims may be excluded as a matter of principle. By contrast, separating the wording of patent document from the alleged intent of the patent applicant and attributing the decisive role to its perception by an abstract construct - a so called person skilled in the art - may result in the possibility of expanding its scope to cover also obvious equivalents of the technical features protected by the patent.
The practice of applying the doctrine of equivalents has established, therefore, such principles determining the conclusion on the infringement of the patent which aim at combining fair protection for the patent holder with a reasonable degree of legal certainty for third parties, pursuant to the provisions of the Protocol on the Interpretation of Article 69 EPC.
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Łukasz Gruszczyński
Plain packaging of tobacco products and the obligations of the TRIPS Agreement
The introduction of a plain packaging law by Australia in 2012 was met with intense opposition from the tobacco industry. Five countries, acting as de facto intermediaries of tobacco companies, decided to challenge the Australian law in a formal WTO dispute settlement proceeding, arguing that the Tobacco Plain Packaging Act (TPPA) and implementing legislation violated various WTO obligations. The central issue in their complaint relates to the potential infringements of different provisions of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), which sets certain minimum standards for the protection of trademark rights. This article assesses the validity of TRIPS-related claims. It concentrates on two specific issues which appear to the author to be the most important in the context of the dispute: (i) the nature of trademark rights under the TRIPS Agreement (negative v. positive rights) and (ii) standards of conduct required under Art. 20 of the TRIPS Agreement (a provision which directly regulates the use of trademark in the course of trade activities). Although the article admits that, due to the limited case law and enigmatic language of the relevant
TRIPS provisions it is difficult to predict with certainty the outcome of the proceedings, it also concludes that the legal position of Australia is relatively strong. It is argued herein that a literal reading of the TRIPS Agreement indicates that it only recognizes a negative aspect of trademark rights (i.e. a right to prevent others from using the same or similar trademark), while its requirements with respect to the usage rights of trademarks are very limited. Since the TPPA does not affect the negative aspect of trademark rights, it cannot be regarded as incompatible with most of the provisions identified by the complainants. At the same time, a literal reading of the TRIPS Agreement appears to be justified by the current practice of the WTO dispute settlement bodies, which tends to prefer a textual rather than objective-oriented interpretation. With regard to Art. 20, the author concludes that protection of public health may constitute the grounds for restricting the use of a trademark. Although the TPPA potentially restricts international trade, the importance of its objectives, combined with the level of its contribution to achieve those objectives, is sufficiently high to conclude that it constitutes a justifiable encumbrance and therefore complies with the requirements of Art. 20 of the TRIPS Agreement.
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Ewa Nitkiewicz
Call for retaining safe harbours for internet portals in the face of accepting the referral of Delfi AS versus Estonia case to the Great Chamber of the European Court of Human Rights in Strasbourg
The controversial judgment of the European Court of Human Rights in Strasbourg in Delfi v. Estonia (Case no: 64569/09) of 10 October 2013, making the owner of Internet portal liable for defamatory comments posted by portal users on the internet message board (an internet forum), will be reviewed by the Great Chamber of the Court. The recognition of a host provider as a media publisher in relation to comments published on its Internet forum by third parties, not only raises questions about the freedom of expression and the right to impart information on the Internet, but it also contradicts the binding European Union regulations on electronic commerce, which creates legal uncertainty for internet intermediaries. This article comprises a critical commentary to the judgment in question and it presents first judgments of supreme national courts in Poland and in Northern Ireland referring to the Delfi case. The author considers the legal consequences of the Delfi case for further activity of internet service providers, especially the future of information exchange, discussions on fora, social networks and other interactions among Internet users via electronic tools provided by internet intermediaries. The text presents the respective rulings of the Court of Justice of European Union, in which the Court examined hosting services upon provisions of Directive 2000/31/EC concerning electronic commerce and limitations of liability of host providers for third party content. The activity of an internet portal as a media publisher that controls its journalists and publishes its own articles is clearly distinguished from the hosting services provided by such portals. It shall be emphasized that proper regulation of liability of internet intermediaries enables functioning and creation of the Internet, nowadays based mainly on user-generated content. The article refers also to the bill to amend the Polish Law on Electronic Services of August 2014 and presents the author's comments de lege ferenda.
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Olena Shynkarenko
Intellectual Property Rights in Trade Agreements between the European Union and the European Third States (EEA, EU-Switzerland, EU-Ukraine)
To ensure meaningful protection of intellectual property rights in trade relations with third states, the EU has initiated and supported different undertakings. Such undertakings include signing and implementation of bilateral and regional trade agreements that incorporate provisions on protection of intellectual property.
Looking from the perspective of IP rights protection, trade agreements entered into by the EU can be divided into the three generations:
• The first generation includes the trade agreements that were negotiated from 1950s to the late 1980s and did not regulate matters related to the protection of intellectual property rights;
• The second generation covers the trade agreements negotiated between the early 1990s till 2006-2007. Currently, this is the largest group of the trade agreements, including relevant chapters in stabilization agreements with the Western Balkan states. Provisions dealing with IP protection are rather general in these agreements, basically setting out the level of protection and the obligation of the parties to accede to the major international treaties and conventions in the area of intellectual property;
• Starting from 2006-2007, the EU strives to negotiate "TRIPS-Plus" provisions in its trade agreements that provide for even more restrictive conditions - the third generation of trade agreements. The reason for this change in the EU's policy was the result of adoption of the Strategy for the enforcement of intellectual property rights in 2005, which provided for the clarification and strengthening of the enforcement clauses in trade agreements. This paper gives an overview of three different contexts and regimes of IP rights protection: the relevant provisions of the EEA Agreement, bilateral EU-Switzerland relationships and the Association Agreement between the EU and Ukraine. The scope of intellectual property provisions in each situation is greatly dependent on the purpose.
The EEA Agreement is aimed at functioning of the Internal Market among the EU and Iceland, Norway and Liechtenstein under single set of rules, in order to eliminate barriers to trade and free movement of goods, persons, services and capital. To achieve this purpose, the EEA Agreement extends the principle of regional exhaustion of rights to Iceland, Norway and Liechtenstein and obliges them to abide by/implement the EU legislation in relevant fields. As a result, the regime of IP rights protection in these states is very similar, although not the same as the one of the EU.
Switzerland, which is willing to maintain close trade relationships with the EU on preferential terms, pursues selective and gradual integration with the EU through a network of bilateral sectoral agreements. As both parties are modern market economies, even few regulations are sufficient. Additionally, Switzerland has unilaterally amended its domestic law, including the field of intellectual property, to make it compatible with the one of the EU for economic benefits.
Ukraine, notwithstanding its current political and social situation, pursues the ultimate goal of the EU membership, and the Association Agreement, although not dealing with potential membership, serves as a step towards political and economic integration. As one of its purposes is functioning of deep and comprehensive free trade area, the Agreement sets out the same standards of intellectual property and enforcement mechanism as there are in the EU.
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Magdalena Danek
Consumer welfare objective in the GlaxoSmithKline judgment: an obstacle to the reform of Art. 102 TFEU?
It is a quite common thesis in the EU competition law literature that the general view on competition law goals in case C-501/06 P etc. GlaxoSmithKline v. Commission poses a barrier to application of a more economic approach to Art. 102 TFEU, an approach based on the investigation into market effects of the conduct and oriented at consumer welfare. The commentators underlined that in GlaxoSmithKline the ECJ advocated a structural understanding of the notion of competition as the object of protection in competition law, and thus it stood for the protection of competitors' interests. Therefore, it set the goal of competition law as maintenance of the market structure. This standing was said not to leave much or any room for an analysis of efficiency and effects on consumers' situation. This article presents polemics with the above-mentioned opinions and the general perception of GlaxoSmithKline judgement's input into the discussion on the review of Art. 102 TFEU. The study underlines the essence of the GlaxoSmithKline judgement, which was passed under Art. 101 TFEU. In GlaxoSmithKline the ECJ questioned the method of appraisal of the agreements that put restrictions on parallel trade, stating that for determining whether an agreement is anticompetitive by objective (as opposed to agreements anticompetitive by effect) is not required to consider the influence of that agreement on consumers' interests. The article proves that the ECJ statement on interpretation of competition law goals does not preclude ascribing importance the consumer welfare goal. Moreover, it makes it visible that by pointing at protection of competitors through competition rules the ECJ, on the grounds of this case, does not negate the legality of non-structural dynamic approach to competition law analysis (for example that oriented at efficiency).
Finally, through questioning the character of the case and legal analysis applied, this article negates the view that the GlaxoSmithKline judgement presents an appropriate point of reference in the debate on the legal frames and barriers to the adoption of a more economic approach to application of Art. 102 TFEU.
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