Ph.D., a lecturer at Kozminski University and a supervisor of the Students’ Organisation “Actio Efficiens”; Judge’s assistant in the Civil Chamber of the Supreme Court of the Republic of Poland; formerly a trainee in the DIPP Department in OHIM and a junior associate in a Polish leading patent, trademark and design law firm; she prepared her doctoral dissertation – “Invalidity and Cancelation of the Design Right”.
I.Industrial Property
In Poland, the principal legislative act regulating the issue of industrial property goods protection is the Industrial Property Act of 30 June 2000 (The full text of this legislative act is available on the website of the Polish Patent Office – www.uprp.pl). This act provides for the protection of six industrial property goods:
- Inventions (patents),
- Utility models,
- Industrial designs,
- Trade marks,
- Geographical indications,
- Topographies of integrated circuits.
The procedure of filing for protection of industrial property goods is governed by the Regulation of the Prime Minister dated 17 September 2001.The filing and processing of patent and utility model applications (Dz.U. 2001, No 102, item 1119, Dz.U.2005, No 109, item 910) and the fees are governed by the Regulation of the Council of Ministers dated 26 February 2008 amending the regulation on fees related to the protection of inventions, utility models, industrial designs, trademarks, geographical indications and topographies of ‘integrated circuits’ (Dz.U. 2008, No 41, item 241).
1. Inventions
As in other legal systems, a patent is an exclusive right granted for an invention, regardless of the field of technology, if it is new, involves an inventive step and is capable of industrial application. A patent is new if it is not part of the prior art. Patents are granted for 20 years from the application filing date. The fee for filing a patent application is PLN 550; if the application is filed online, the cost will amount to – PLN 500; however, the electronic application form is still not working due to the lack of an electronic signature.
2. Utility models
Utility models protected under the Industrial Property Act have to represent a new and useful solution of a technical nature affecting the shape, construction or assembly of an object with a stable form. Protection rights for utility models are granted for 10 years. The fees are the same as those for a patent application, namely – PLN 550 for a traditional filing, and 500 PLN for an electronic filing.
3. Industrial designs
For an industrial design to be granted protection, it needs to be new and have an individual character. The industrial design is incorporated in the form of a product or its components, in particular the characteristic lines, colours, shapes, contours, texture or materials of the product and its ornamentation. Protection is granted for 25 years, divided into 5-year periods. The fee for the first 5-year protection period is PLN 400, for the second – PLN 1000, for the third – PLN 2000, the fourth – PLN 3000, and up to PLN 4000 for the fifthperiod of protection.
4. Trade marks
Any sign can be protected as a trade mark if it is capable of being represented graphically (words, indications, ornamentations, and combinations of colours, shapes of goods, signs and melodies) and if it is capable of distinguishing the goods or services of one enterprise from those of other enterprises. The protection is granted for a 10-year period and it can be renewed without limitation. The fees for trade mark protection are the same as for other industrial property goods – PLN 550 for a traditional filing and PLN 500 for an electronic filing. However, these fees apply to trade mark protection in three classes; for each additional class there is an additional fee of PLN 120.
5. Geographical indications
According to the Industrial Property Act, there is no legal definition of geographical indications. There are two types of geographic indications – the names of geographical indications and designations of the origin in the region. Both are used to protect goods that are produced in a specific area and in a characteristic manner.
6. Topographies of integrated circuits
Under the Industrial Property Act, the topography of integrated circuits is the ”three-dimensional arrangement of the elements, however expressed, at least one of which is an active element, and of all or some interconnections in an integrated circuit, shall be considered as a topography of an integrated circuit.” The protection period for topographies is 15 years from the filing date. Under the Industrial Property Act, anyone not residing or companies not established in Poland cannot file for protection of any of the above industrial property goods by themselves, and need to be represented by a patent agent.
II. Copyright Law (author of this part: Jan Wosiura)
In Poland, creative works are protected under Polish Copyright and Related Rights Act from 4 February 1994 (Dz.U. 2006. No 90 item 631 as amended, the “Polish Copyright Act”). Polish copyright legislation is based on the Berne Convention (The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed in Paris on 4 May 1896, revised in Berlin on 13 November 1908, completed in Berne on 20 March 1914, revised in Rome on 2 June 1928, in Brussels on 26 June 1948, in Stockholm on 14 July 1967, and in Paris on 24 July 1971, and amended on 28 September 1979) the main purpose of which is to protect the creator, though not always the copyright owner in general. This doctrine has been enlarged in Polish copyrights – some of which cannot be transferred at all. This makes any transfer, in general, complicated and rigorous. It has to be said that the Polish Copyright Act is full of general clauses that prevent lawyers from creating any general solutions. However, some basic rules can be and should be displayed here.
1. The creative work
Under Article 1 paragraph 1 of the Polish Copyright Act, a creative work is protected even if it is unfinished and regardless of its value. However, there are four factors that have to be met to constitute a creative work – manifestation, individuality, originality and human creation.
1.1. Manifestation
In Poland, creative works do not have to be recorded or transcribed in order to be protected. There is also absolutely no registration of them. Copyright protection of creative work starts at the moment of its manifestation, which is understood as any kind of communication of a creative work to another person (public performance, reproduction, emission etc.) or any record. Any subsequent actions are of no significance in terms of the creative work’s protection.
1.2. Individuality
The individuality criterion of a creative work is very general and undefined. However, Polish law doctrine and practice have developed a semi-binding definition – an individual creative work is a manifestation of the personal characteristics of the creator. The degree of individuality depends on the genre of the creative work; for example, a database is by nature less individual than classical music.
1.3. Originality
A creative work is original when it is new (the “innovation criterion”) and there is an extremely low possibility of another person creating the exact same work (the “result criterion”). Of course, it has to be said that in legal practice there are some situations where a creative work is “less original” (for example databases) or hard to define (for example modern art), and therefore Polish law doctrine and practice consider the factor of originality to be optional in some genres of creative works.
1.4. Human Creation
Under the Polish Copyright Act, a creative work must be made by a human. Any limited capacity to undertake into legal actions is completely insignificant in this regard, meaning that the mentally disabled or juveniles can be creators. However, a legal guardian will need to grant permission for the disposal of some copyrights. It is also not possible to protect content created entirely by an animal (even if original and individual), a computer or any other machine.
2. Dualism of Polish copyrights
As explained above, a creative work is protected in Poland if it was manifested in any way. From that moment, the creator has all copyrights to his work. It should be noted that Poland has a dualistic system of copyrights – at the moment of expression, the creator is granted moral copyrights (2.1) and economic copyrights (2.2.).
2.1. Moral (personal) Copyrights
Moral copyrights are completely tied to the person of the creator. They cannot be sold, lent, transferred, licensed or in any way limited. They are also indefinite, remaining in place after the creator’s death, and can be managed by the surviving family or a designated person.
Article 16 of the Polish Copyright Act mentions:
- the right of authorship and the right to sign the creative work – protecting the bond between the creator and the work
- the right of integrity control – any changes to the creative work require the creator’s permission. Even if another entity has all the economic rights to exploit the creative work, that permission is still necessary.
- the right to decide about the first communication to the public – this right remains with the creator, even if economic copyrights were transferred.
- the right to control the use of the creative work – even if economic rights were transferred and the creative work is materially possessed by another entity, the creator still has the right to control how the work is used.
2.2. Economic copyrights
Economic copyrights comprise the right to copy, disseminate (which means any communication to the public), publicise or exploit the work on all exploitation fields, even in form of an analysis or arrangement.
2.2.1. Transfer of economic copyrights
A copyright transfer agreement must be drawn up in writing or will be invalid. An agreement also requires the fields of exploitation (i.e. the ways in which the creative work can be used) to be specified explicitly. Copyrights are transferred only for precisely specified fields of exploitation. The transfer of copyrights on future fields of exploitation is invalid. It is therefore impossible to transfer copyrights with a statement that, “from now on the economic copyrights are owned by the second party.” In addition, the creator can withdraw from such an agreement due to “creativity interests” as long as he or she covers any subsequent losses incurred by the second party.
2.2.2. Contractual creative works and creative works made by employees
In Poland, there is no institution of works-made-for-hire, and economic copyrights to creative work performed while fulfilling any contractual duties remains with the creator until properly transferred. However, there is an exception in the case of creative work performed by an employee within the framework of the employment relationship. All economic copyrights to that kind of work are granted to the employer upon delivery to him. Note that there is a different regulation for computer programs in this matter (for more, see 4.1)
3. Limitations of copyrights
In Poland, using a creative work for a non-commercial purpose still generally requires permission and remuneration. There is no ‘fair use’ in the common, elastic sense – limitations of copyrights (permissible use) are stricter. The use of a creative work has to be non-commercial, and has to be one of the uses listed in a closed catalogue in Articles 23-35 of the Polish Copyright Act, not subject to a judge’s evaluation like in common law countries.
3.1. Personal permissible use
Article 23 of the Polish Copyright Act constitutes the right to use a creative work without its dissemination. That also contains the right to a private copy. The authorisation is extended to people who are closest to the user (closest family and friends). In such cases, it is permitted to share a copy of a creative work with the closest individuals without the copyright holder’s permission. Note that computer programs are excluded from Article 23 (for more see 4.1).
3.2. Public permissible use
Articles 24-33 of the Polish Copyright Act contain permissions to use a creative work in public without the permission of the copyright holder. They are completely different from each other and cover permissions as quotations, reemissions, and library or school use etc. However, there are some general rules of permissible public use. Firstly, under Article 34 of the Polish Copyright Act, any permitted use requires that the author be credited by mentioning his name and the source from which the creative work was taken. Secondly, under Article 35 of the Polish Copyright Act, permissible use cannot violate the author’s economic interests and usage of the work. That clause is designed to protect moral copyrights (for more see 2.1), which cannot be limited in any way.
4. Special regulations
4.1. Computer programs
Because of their nature, computer programs are excluded from permitted use in general, with only one exception – computer programs can be quoted from. Note, a huge portion of moral copyrights to computer programs are part of economic copyrights, and therefore can be transferred. There is also a separate regulation of the economic rights to programs by employee within the framework of an employment relationship. They belong to the employer from the moment of creation. Note that, under the Polish Criminal Code of 2 August 1997 (Dz.U. 2006, No 90, item 631, as amended), copying a computer program is considered to be the crime of theft and is punished in the same way (up to five years’ imprisonment).
4.2. Audio-visual works
Economic copyrights to an audio-visual work belong to the producer, who bears the costs of its formation. However, that only concerns the copyrights to the audio-visual work as a whole. The creators of particular parts of an audio-visual work retain the economic copyrights to these parts.
5. Civil actions
In the case of copyright protection, the following civil actions are available. Note that the creator can give permission to a copyright holder to act on the creator’s behalf.
5.1. Protection of economic copyrights:
- claim for damages for the unauthorised use of a creative work
- claim for the return of profits received from unauthorised use
- claim for ceasing the unauthorised use of a creative work
5.2. Protection of moral copyrights:
- claim for remedying unauthorised changes done to a creative work
- claim for access to a creative work for the purpose of making changes
- claim for remedying the omission of the creator’s name
- claim for a public apology for a violation of moral copyrights
6. Criminal provisions
In Poland, certain actions against copyrights are protected by criminal law. The section “Criminal Provisions” in the Polish Copyright Act contains prohibitions on:
- plagiarism
- the dissemination of a creative work without the creator’s permission
- the production and possession of devices designed to infringe any rights management system (including DRM)
- the illegal sale or purchase of creative works if it entails material profit
- hampering or preventing Collective Management Organisation (for more see 7) from exercising its right of control.
7. Collective management
The collective management of copyrights consists in group protection of creators’ economic rights by Collective Management Organisations (CMO), which collect royalties and re-distribute them to creators or copyright holders. There are multiple CMO in Poland, with each usually protecting a different kind of creative work or rights related with copyrights. In Poland, unlike in the USA or many other legal systems, CMO enjoy statutory authority to act on behalf of creators in almost all fields of exploitation. In addition, it is argued that a CMO is able to raise claims on behalf of the creator. Whether or not a creator is registered with any CMO does not matter – in that case, royalties are still collected and stored for six years for the creator to collect.
8. Related rights
In addition to the rights mentioned above, the Polish Copyright Act contains the following related rights:
- a prohibition on the dissemination of the image of a private individual (i.e. a person not in the public domain) without permission, unless the image is a part of a “bigger picture”;
- a prohibition on the dissemination of private correspondence, unless the person, to whom correspondence is addressed, has declared otherwise;
- the right to an artistic performance;
- the producer’s rights to phonograms and videograms;
- a television or radio organisation’s right to dispose of their recordings.
