Copyrights infringement in Poland. How to claim your rights?

Copyrights infringement in Poland. How to claim your rights?

Dynamic technological development of today’s world together with the extensive use of the Internet, both in business and interpersonal relations, has had an impact on the fact that the rights on intangible goods gain more and more value. This, in particular, relates to copyrights for computer programs, mobile applications, photographs or musical compositions. As is usually the case with the incidents of increased use of a certain type of rights that include an economic dimension, sooner or later disputes and conflicts related to their infringement arise. How does Polish law respond to such situations? What can you do if your copyrights have been violated by someone from Poland? What can you do as an author if somebody infringes your copyrights in Poland? This article will answer these questions.

Copyrights in Poland – general overview

Let’s start with a certain restriction. Intellectual property rights constitute a broad field that comprises not only copyrights but also e.g. industrial property rights. They include patents, trademarks or industrial designs which are governed by their own regulations. Thus, the topic is very broad. Therefore, in this article, we will focus only on the subject of copyright infringements. The rest of the intellectual property rights will be described in separate publications.

In Poland, copyrights are regulated by the Act of 4 February 1994 on Copyright and Related Rights (further referred to as the Copyright Act). In which cases does this law apply?

Art. 5 of the Copyright Act specifies that the Polish regulations apply to works:

  • whose author or co-author is a Polish citizen or a citizen of the European Union Member State
  • which have been published for the first time on the territory of the Republic of Poland (or simultaneously on this territory and abroad)
  • which have been published for the first time in the Polish language

Polish regulations also apply if it results from international treaties to which Poland is a party. These treaties include, among others, the Berne Convention from 1886, the Rome Convention from 1976 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) from 1994.

What about copyright infringement itself? After all, the abovementioned regulation refers to the works, not to the infringements or damages stemming from their violation.

Here, one should refer to the conflict-of-law provisions. When it comes to the European Union Member States, EU regulation no 864/2007 is of fundamental importance (the so-called Rome II Regulation), according to which ‘The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.’ This provision is an expression of the generally recognized principle of territoriality in copyright protection. The rule indicates the necessity to apply the substantive law of the country in which the infringement occurred.

Usually (but not always), it will correspond to the law of the country in which the authorized person initiates legal actions in court against the infringer. For instance – if an author from France takes legal actions against a violator of Polish origin in a Polish court, the provisions of the Polish Copyright Act will be applicable.

Types of copyrights in Poland

Polish law distinguishes between an author’s moral rights and economic rights. What are the differences?

Author’s moral rights

The author’s moral rights protect ‘the link between an author and the work’. Therefore, they are closely related to the author of a given work. They are not limited in time and they cannot be subject to waiver. Furthermore, the author’s moral rights are unalienable.

Among them, one can identify, e.g. the right to sign the work with the author’s name or pseudonym or to make it available to the public anonymously. The right to decide on making the work available to the public for the first time is also one of them.

Author’s economic rights

Economic rights govern the rights to use the work for economic purposes, especially to receive remuneration for the use of the work.

These rights are transferable. It means that one can transfer them definitively to another person (transfer of copyrights) or grant another person authorization to use the work temporarily in a specific way (license). The economic rights are limited in time.  The general rule is that they expire after the lapse of 70 years from the death of the author of the work.

Infringement of copyrights in Poland – what does it mean?

What may copyright infringement look like in practice? Obviously, it will depend on the type of work and on the way the violator acts. In the most general terms, however, it can be assumed that copyright infringement constitutes an instance of using someone else’s work without the consent of its creator or another authorized person (such as a person who acquired economic copyright, e.g. when the author of the work is an employee and the work was created under the employment relationship – then it is the employer who holds the copyright to the work).

A much more serious violation is the attribution of the authorship of someone else’s work (plagiarism) or the constant distribution of someone else’s work for financial gains. Such infringements may result not only in civil liability (for damages) but also in criminal responsibility.

Obviously, there are situations when the author’s consent is not necessary to use his or her work by third parties (instances of fair use). Such cases, however, are strictly regulated by law and apply only to selected categories of entities. As a rule, the commercial use of work requires the consent of its creator or another authorized person who has acquired the author’s economic rights.

One should also remember that apart from ‘usual’(original) works, there are also derivative works, i.e. the ones based on one or several previously existing works. These include e.g. translations, music arrangements, adaptations etc. Although the creation of a derivative work does not need anyone’s consent, the distribution of such work (e.g its commercial use) does require the consent of the original work’s author, unless the copyrights to the original work have already expired. The use of a derivative work without the approval of the original work’s creator also constitutes copyright infringement.

Examples of activities that constitute copyright infringement are as follows:

  • using computer software without obtaining a relevant license
  • posting someone else’s photos on your company’s website
  • using someone else’s background music in your own video and publishing the video with that background music on YouTube
  • arrangement of someone else’s song without the permission of the original creator and publication of such an arrangement on a streaming service

Infringement of copyrights in Poland and related pecuniary claims

What can be done when a copyright infringement has occurred?

First of all, it is necessary to establish the manner, place and character of the violation – this will determine what legal claims can be formulated. The claims also depend on the fact whether the infringement concerned economic or moral rights.

Infringement of author’s moral rights

In the event of an infringement of the author’s moral rights, the creator can demand that the violator remove the infringement and its consequences, e.g by making a public statement. If the infringement was culpable, on the basis of Article 78 of the Copyright Act, the court may grant the creator a relevant sum of money as compensation for the harm suffered or, at the creator’s request, oblige the infringer to pay an appropriate sum of money for the social purpose indicated by the creator. From this provision, 2 important rules emerge:

  1. Granting pecuniary compensation to the creator of the work occurs only in the event of a culpable infringement. Therefore, the unlawfulness of the infringement act (the lack of authorisation to use the work) is not sufficient for granting protection. A culpable infringement may be manifested both in premeditated and unintentional actions (recklessness, negligence of an infringer).
  2. The awarded amount of money shall be relevant. The provisions do not explain the meaning of this term and there are no guidelines that would be helpful in establishing the actual amount of the compensation. In practice, this gives a deciding court a considerable degree of freedom in adjudicating. Undoubtedly, however, the compensation awarded must not be symbolic but shall have a significant financial value – both for the creator and the infringer. It should be emphasized that the author of the work may also demand that the amount of compensation is not paid directly to him but for a social purpose indicated by the creator (e.g. for charity purposes).

Infringement of author’s economic rights

In practice, however, the compensation that can be claimed in the event of the author’s economic rights infringement is much more important. Based on the Art. 79 of the Copyright Act, the rightholder of the copyrights may claim to:

  1. repair the inflicted damage on general terms (by indicating precisely the value of the damage suffered) or by
  2. obtain payment of double amount of respective remuneration that would have been due as of the time of claiming it in exchange for the rightholder’s consent for the use of the work.

What is important, in case of the infringement of the author’s economic rights, the fault of the violator is irrelevant. The very fact of the unauthorised use of someone else’s copyrights is sufficient. The fault of the infringer may, however, have an impact on the scope of his responsibility for the crime (e.g. the amount of the compensation). Civil liability for copyright infringement is therefore very severe as it is independent of one’s fault or even knowledge that another person is entitled to copyrights of a given work.

As for the amount of compensation, the Polish law provisions provide a rightholder with the choice of how to determine it. A much easier way is to demand twice the appropriate remuneration.

How to determine the amount of such remuneration?

There is no single rule. Some guidelines and criteria may be indicated, based on the judicial decisions of Polish courts:

  • The relevant remuneration represents the one that would be received by the rightholder if the infringer concluded an agreement with him for the use of the work within the scope of the infringement committed.
  • The remuneration may be determined by the rightholder based on the pay rates he charges to other clients (e.g. the prices at which he/she usually sells or licenses its copyrights). The amount of remuneration may be proved, e.g with invoices issued to buyers or licensees. The remuneration determined by the rightholder should not differ too much from market rates in a given industry.
  • The amount of the remuneration shall depend on the duration of the infringement – the longer the illegal use of the work lasts, the higher the remuneration will be.
  • Compensation is due separately for each instance of infringement – e.g. if a violation of rights to the same work occurs in virtual space and in the real world, the relevant remuneration should be calculated twice.
  • In determining the amount of compensation, the rates proposed by organizations for collective copyright management may be used as a point of reference. These, however, are not binding data for the court deciding in the case.

Once the amount of the remuneration has been established, it shall be doubled, which gives the amount of compensation that can be claimed from the infringer.

If not compensation, then what?

The compensation is not the only claim available to a holder of copyrights. Other claims related to copyright infringements are as follows:

  • a demand to eliminate the consequences of the infringement, abandonment of further violations (e.g. obliging to cease harmful activity), or
  • giving away the obtained benefits (the infringer’s income related to the illegal use of the work, lessen by the costs directly related to such income shown by the infringer)

This, however, does not exhaust the available claims of the proper copyright holder. According to Polish law provisions, when deciding on copyright infringement, the court may also adjudicate on unlawfully manufactured items, e.g by declaring an obligation to withdraw them from the market or even ordering their destruction. Such a scenario may occur, e.g. when industrial design works are produced from someone else’s project, without the proper permission of the rightholder. This applies e.g to designer works, such as clothing or furniture design or home appliances casings’ design.

Statute of limitation for copyright infringement claims

It is worth mentioning here the issue of statute of limitation for copyright infringement claims. The provisions of the Copyright Act do not regulate this matter, therefore, general rules stemming from the Polish civil code should be applied. According to these regulations, the claims related to compensation for damages caused by an illegal deed (e.g.copyright infringement) expire three years after the day on which the aggrieved party learns, or with due diligence could have found out, of the damage and of the person obliged to remedy it. However, this period cannot be longer than ten years from the day on which the event causing the damage occurs.

However, from which point in time should these deadlines be counted? What if the infringement was not a one-time incident but a long-lasting process (e.g. when someone without permission placed someone else’s photo or music on his website without the permission of the creator and the work was available there for a period of 5 years)?

In such a situation, it is assumed that the longer (10-year) limitation period should be counted not from the beginning, but from the end of the damaging event (i.e. from the termination of the harmful event). As for the shorter, 3-year limitation period, counted from the moment of acquiring the relevant knowledge by the rightholder, it is considered that this period does not start from the date on which the aggrieved party received any information about the violator, but only from the moment of receiving such information that, objectively assessing, allow with a sufficient degree of probability to assign the infringement to a specific entity.

Infringement of copyrights in Poland – how to claim your rights in Polish courts?

General remarks on the jurisdiction of Polish courts

So what to do if we have already established the fact of infringement, the violator, the estimated amount of the claim, and even the applicable law? There is only one response – to sue the infringer. Not only for every lawyer but especially for the author considering the lawsuit before contacting his attorney, the most important thing is to determine the court competent to adjudicate in the case.

Detailed regulations in this regard, in the context of a dispute between entities established in the territory of the European Union, are included in Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Polish courts will be competent to decide on the author’s claims if the effect of the infringement (illegal publication of work) took place in Poland. Interestingly, based on the abovementioned regulation, there may occur instances in which the entity having its seat and place of residence in Poland will have to be sued in another country. Such a situation will occur, for example, if a Polish company distributes work to which it does not have the rights, in another country.

Therefore, the general rule (importantly, also for the purpose of assisting non-EU authors, which often requires a separate analysis, which, in 99% of cases confirms the rule) is as follows – in the case the seat or the place of residence of the infringer is confirmed to be in Poland (as well as the establishment of the very fact of infringement in Poland), the violator should be sued in Poland.

The procedure related to copyright infringement

General information

The general rules for initiating proceedings in Poland are available in various language versions on the websites of European Union online structures. As these issues are not the subject of this article, it is worth highlighting only a few of the most practical aspects.

The statement of claim should be submitted to the court in which the defendant has his or her place of residence or seat. The court fee for filing a claim (payable to the court’s account) will usually amount to 5% of the value of the pursued claim. Before the trial can take place, a subpoena should be sent to the defendant. Due to the so-called evidence preclusion (although it exists to varying degrees – depending on the nature of the case), the claim should mention the maximum possible amount of evidence. Losing the lawsuit usually involves the necessity to incur additional costs, mainly in the form of compensation determined on the basis of legal provisions for the winning party for the necessity to use the assistance of a professional attorney during the trial. This compensation depends on the value of the right in the dispute.

Details of the copyright infringement procedure/proceeding

The Polish legislator has recognized the peculiarities of proceedings related to the protection of authors, introducing separate procedures and institutions in mid-2020, facilitating and accelerating the formulation of claims related to the infringement of intellectual property rights.

The cases described in this article have been therefore passed to district courts  – which are, by their nature (resulting from their location in the Polish judicial system), considered to be the most specialized and intended for first-instance adjudication of cases of the highest importance.

It is very important that the Polish legislator, having regard to the above and striving to speed up the recognition process of cases, introduced the so-called compulsory representation by a lawyer. This means that each of the parties – the author and the infringer – must be represented by a professional proxy (attorney-at-law, legal counsellor, patent attorney) in cases with a value of the dispute above 20.000 PLN.

Special solutions that give the author an advantage (even before the lawsuit)

Making the proceedings as ‘professionalised’ as possible is not the only convenience. The most important are the tools provided by the legislator in order to strengthen the author’s position, by shifting the burden of proof from the party initiating the lawsuit to the defending party, i.e. the infringer.

These include securing the evidence, revealing or releasing the evidence or request for information.

Securing evidence

The first of the abovementioned tools is securing the evidence. It is not a new institution in the Polish procedure but for the needs of the aggrieved author, the Polish legislator decided to strengthen it further.

There are two key factors that constitute the key to a positive court decision concerning securing evidence (what is important – not only before the lawsuit but also during its duration). The requester (the author) must make his or her claim arguable and, secondly, must have the so-called legal interest.

Presenting an arguable claim should be explained as a milder version of its proving. Therefore, the author’s declarations and suspicions, supported by even circumstantial evidence, may prove sufficient.

The essence of securing evidence, i.e. the legal interest (probably known in procedural legislation around the world) is the need for a quick response related to its potential destruction, disappearance or degradation. The difference in favour of the author (in comparison to other matters not related to copyright infringement) is such that the secured evidence does not have to be endangered in an above-mentioned manner. It is sufficient that the author, without the court providing the security, could have a problem with e.g. estimating his or her claim or with proving it before the court. The difference is subtle but very important – there is no need to prove that the evidence is unsecured. It is enough to demonstrate that the author’s situation during the lawsuit without this proof will be aggravated.

Importantly, the court is obliged to recognize the author’s claim (including the one submitted even before the initiation of the lawsuit) within a week. Even the obstruction of the other party should not slow down the action. In turn, the court of the second instance, considering a possible complaint of the infringer, has only one month to make a decision.

The court has freedom in determining how to secure evidence. The legislator only indicates,  by way of example, such possibilities as collecting goods, materials, documents and tools used in production or distribution, as well as preparing a detailed description of these items combined, if necessary, with taking their samples.

Obviously, a bailiff helps in implementing the court’s decision. It should be mentioned that for the court and the bailiff it does not matter who is in possession of the evidence. It can be both the defendant and a person who is not involved in the lawsuit at all.

Disclosure or release of the evidence

Even more far-reaching (although concerning only the defendant), i.e. more favourable for the author, is the disclosure or release of evidence.

In this case, in order to accept the author’s request, the court will not require the demonstration of the above-mentioned legal interest. Here, it is enough to demonstrate the substantiation of the claim (also described above).

With such a request, the author may demand that the defendant (infringer) disclose or release the evidence at his disposal, in particular banking, financial or commercial documents used to reveal and prove the facts.

Therefore, the author does not have to have full knowledge and evidence at the start of the lawsuit – he or she can obtain them with the help of a court, thanks to a properly motivated request.

It should be noted that if the defendant evades the execution of the court decision (refuses to provide information, conceals evidence, destroys it, etc.), he will face severe consequences, including being charged with the costs of the trial (even if he wins), and above all – recognition as confirmed facts that were to be verified with the requested information and evidence, which may straight result in losing the trial.

Request for information

The last, and as interesting as the others, is the information request mechanism.

The obligation to provide information can be imposed on both the defendant and the third party. However, it has been limited to a narrow list of cases, i.e. the requested information may only refer to the origin and distribution network of goods or services if it is necessary for pursuing a claim.

As you can see, this mechanism concerns mainly cases related to the trade in goods commonly referred to as forged goods and is aimed at eliminating them from the market, and also removing the original source that introduced them to it.

It is worth mentioning that providing false information at the request of the court results in criminal liability.

Infringement of copyrights in Poland – summary

Although pursuing claims of copyright infringement may seem complicated, Polish law offers authors a number of institutions to encourage them to fight for their rights. However, the assistance of a professional in the execution of claims is indispensable not only for procedural reasons (in the context of the statutory obligation) but also to correctly determine the type, nature and amount of the claim, before bringing the case to court.

If our article has not exhausted everything you would like to know about copyright infringement and the enforcement of copyright claims, contact us. Our specialists have many years of experience in representing before the court both authors, entities and persons who – consciously or not – have committed infringements. With us, you will find a solution to any legal problem.