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 someone from Poland violated your copyrights? 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.
In Poland, copyrights are subject to 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 is an infringement?
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 it ‘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 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, 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 unlimited 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). He can also 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 author’s death.
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. Copyright infringement is an instance of using someone else’s work without the consent of its creator or authorized person. E.g. such as a person buyer of economic copyright. E.g. when the author of the work is an employee and he created the work under the employment relationship. Then it is the employer who holds the copyright to the work).
Plagiarism in Poland – how to fight it?
A much more serious violation is the attribution of the authorship of someone else’s work (plagiarism). As well as 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. The commercial use of work requires the consent of its creator or another authorized person who obtained author’s economic rights.
You 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 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 you do in case of a copyright infringement in Poland?
First of all, it is necessary to establish the manner, place and character of the violation. This will determine what legal claims are available. 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. At the creator’s request he may also 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:
- 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 is not sufficient for granting protection. A culpable infringement may be both premeditated and unintentional actions (recklessness, negligence of an infringer).
- The awarded amount of money shall be relevant. The provisions do not explain the meaning of this term. 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, the compensation awarded must not be symbolic. It shall have a significant financial value – both for the creator and the infringer. The author of the work may also demand that the amount of compensation doesn’t go directly to him. It may be for a social purpose of creator’s choice (e.g. for charity purposes).
Infringement of author’s economic rights
In practice, however, the compensation due 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:
- repair the inflicted damage on general terms (by indicating precisely the value of the damage suffered) or by
- 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 holds copyrights of a given work.
The amount of compensation for copyright infringement in Poland
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. We may indicate some guidelines and criteria, 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 buyer
- s 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. In this case 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.
How do you count the deadlines?
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, we assume 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. It starts 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 present in the territory of the European Union, are 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, if a Polish company distributes work to which it does not have the rights. Of course to another country.
Therefore, the general rule importantly, is as follows – in the case the seat or the place of residence of the infringer is confirmed to be in Poland, the violator should have case in Poland. It applies also for the purpose of assisting non-EU authors, which often requires a separate analysis. 99% of cases it confirms the rule.
The procedure related to copyright infringement
The general rules for initiating proceedings in Poland are available in various language versions on the websites of European Union. 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 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, 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 are in the authority of district courts. They are, by their nature, considered to be the most specialized. They have 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 have 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.
The first of the abovementioned tools is securing the evidence. It is not a new institution in the Polish procedure. However, 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 “legal interest”
The essence of securing evidence, is the need for a quick response related to its potential destruction, disappearance or degradation. The difference in favour of the author 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 unsecure. It is enough to demonstrate that the author’s situation during the lawsuit without this proof will be aggravated.
Importantly, the court has 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. The court of the second instance, 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. 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 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. The latter 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 concerning the trade in goods commonly called forged goods and aims at eliminating them from the market. It also aims at 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. It is also necessary to correctly determine the type, nature and amount of the claim.
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. If this article was interesting for you and you want to know more on the topic it concerned we encourage you to contact us. Specialists from our law firm in Poland, Warsaw, will be happy to help. If you are interested in company registration in Poland visit our landing page dedicated to the the foreign investors in Poland.