Rights to a bus and the beginning of the end of formalised copyright transfer


Copyright transfer, as regulated in Articles 41-68 of the Polish Act on Copyrights and Related Rights of 9 February 1994 (Polish Journal of Laws 2006.90.631 – hereinafter referred to as “Copyright Act”) is extremely strict and formalised. Current regulations are designed to protect the creator against business and the media industry, which are considered as the stronger party in copyright transfer relations. Any transfer must have specified fields of exploitation or will be declared invalid. Moreover, any inaccuracies have to be resolved in favour of the creator.

There is also an obligation to use a specific expression of intent to transfer copyrights. If not, according to Article 65 of the Copyright Act, there is a presumption that a given agreement is actually a licence agreement signed for a defined period of five years. So far, Polish jurisprudence has maintained that these regulations are unconditional, though a recent Supreme Court judgment of from 15 November 2012 (V CSK 545/11) stated that in some circumstances the strict rules of copyright transfer can be alleviated.

It has been stated by the court that copyright law cannot be enforced without reference to the general rules of Polish private law agreements, in particular Article 65 of the Civil Code from 18 May 1964 (Polish Journal of Laws 1964.16.93 – hereinafter referred to as the “Civil Code”). This regulation states that statements of intent have to be interpreted in accordance with the intention of parties to the contract, rather than the literal wording of the agreement. So far in Polish jurisprudence, this clause was usually considered as not applying to copyright transfer agreements. A clear statement from the Supreme Court will probably change this approach.

The Supreme Court judgement also raised another significant issue in Polish copyright law. It has to be said that the requirements for the protection of creative works in Poland are relatively easy to meet.

This judgment is certain to have a significant influence on law practice in Poland. It seems that the creator is no longer unconditionally protected and will deal with consequence of signing an adverse agreement. However, the creator is still the weaker party to the copyright transfer relation and has to be protected somehow. A “thaw” in copyright law does not seem to go very far. To make a successful copyright transfer, it is still recommended to comply with the regulations of Articles 41-68 of the Copyright Act, especially by specifying the duration of the agreement and all fields of exploitation.

The Supreme Court judgement also raised another significant issue in Polish copyright law. It has to be said that the requirements for the protection of creative works in Poland are relatively easy to meet. According to Article 1 paragraph 1 of the Copyright Act, in order to be protected, a creative work does not have to be published – simply disseminated in any way. It also has to be original and individual. This formula means that almost every creation by human hand is considered a creative work, and more importantly allows its immaterial form to be protected, even if very uncommon. This causes significant difficulties in determining the limits of copyright protection.

In the discussed case, the Defendant made a bus using the Claimant’s design, and the latter sought protection of its copyrights. In the Court of Appeal, protection was denied, because “a bus is not an immaterial good subject to copyright, but only a material object that could be a medium (corpus mechanicum) for an immaterial creative work. The Supreme Court maintained that judgment and stated that granting copyright protection to the bus is unacceptable because of its material character. However, protection would be granted for the plans and concept of the discussed bus.

This point of view does not seem to be completely legitimate. A creative work is immaterial, but it is expressed through a medium (whether a static object, a visual work or sound waves). If a building can be protected as an architectural work, there seems to be no grounds to deny protection to a bus. Otherwise, a creative work starts to be binding to a particular type of medium and consequently ceases to be truly immaterial – thereby losing its most basic and significant attribute.

Posted on by Jan Wosiura in IP Law

About the author

Jan Wosiura
Jan Wosiura

Ph.D. candidate at Koźmiński University. His major research fields are Intellectual Property Law and Cyber Law, especially computer programs and the online distribution of creative works. He is an advisor to many artistic organisations and the author of a series of publications promoting knowledge about copyrights.