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Third Time Unlucky – the Polish Constitutional Tribunal Axes the Triple Licence Fee

For quite a long time nothing special has been happening in Polish copyright law. Some court decisions here and there (in all fairness unlikely to be called ground-breaking) and some new legislative initiatives (that will be worthy of presenting if eventually passed). However, yesterday (June 23, 2015) the Polish Constitutional Tribunal issued a decision on the art. 79.1 (3 a) of the Polish Copyright Act, declaring the provision unconstitutional. Several facets of the case deserve wider attention and may be relevant in the context of the general discussion on the enforcement of copyright and the desired level of sanctions available in copyright law.

Polish law is very friendly towards copyr [...]

The Court of Justice on Links: It is Allowed to Link. At Least In Principle.

tomasztargosz-sqThe Court of Justice delivered its highly anticipated decision on linking. A breath of relief is allowed: linking seems to be legal. But when one looks a little closer, disturbing things begin to emerge.

First things first. The decision in Case C‑466/12, resulting from a request for a preliminary ruling from a Swedish court (Nils Svensson and others v Retriever Sverige AB) comes to the conclusion that providing on a website a link to another website, where a copyright work is “freely available”, does not constitute an ‘act of communication to the public’ in the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmon [...]

Must Carry – Must Offer – Must Infringe

T-TargoszHow the Polish broadcasting law on must-carry and must-offer makes broadcasters choose whether to infringe copyright and licensing contracts or the Polish Broadcasting Act.

This post is about a rare mixture of folly and incompetence that is fortunately unlikely to leave any durable traces on the face of copyright law in Europe. However, the utter absurdity of the matter does not deprive it of its current (and hopefully only current) practical significance in Poland. For readers from outside Poland it may even be entertaining (for Poles, I am afraid, not so much).

The ingredients of all this are: (a) good intentions (b) dismal quality of legislation and (c) incompetence of a major public body [...]

Open access by law – proposal for a new regulation in Poland

Tomasz TargoszThe Polish Ministry of Administration and Digitisation has initiated discussion on the law providing free access to public resources.

The Ministry has made available on its webpage a document entitled “Draft Guidelines for the Proposal of the Act on Open Public Resources” and has invited interested parties to comment. Thus a process of “open access by law” has begun. It has been long thought that public resources of various kinds should be, when possible, made available on the internet for free along the motto: what has been paid for by public money is public property. Usually such initiatives have been voluntary and have thus relied on either good will or political pressure. Now, ho [...]

Polish Parliament: proposed directive on collective rights management does not comply with principle of subsidiarity

“The Polish Parliament is of the opinion the draft proposal does not adequately explain why these goals can be “better” realised on the EU level. “

Friday, October 12th 2012 was packed with action in the Polish Parliament (Sejm), because on that day the prime minister subject his government to the vote of confidence and delivered a speech explaining his plans and endeavours for the next three years. The turnout in the often empty house was therefore extraordinary.

Amid this political turmoil (in fact just after the Parliament gave its vote of confidence to the government) the Sejm passed almost unanimously a resolution declaring the proposal for a directive on collective rights managemen [...]

Welcome to the Brave Old World – UsedSoft and the ‘Full’ Online Exhaustion

“With a bit of pathos one may say that the CJEU has restored the old exhaustion principle to its full glory in the digital age. In order to do so the Court did not hesitate to be adventurous with legal interpretation and has also opened new fields for discussion.”

On July 3 the CJEU delivered its judgement in the UsedSoft case concerning the question that according to the recital 29 of the 2001/29 directive “does not arise”, i.e. the question about ‘online exhaustion’. When it, however, arose and when the CJEU answered it, there are only bits and pieces of the traditional copyright wisdom to be collected and discarded. Not so long ago I reported the Advocate General’s opinion in th [...]

The UsedSoft case – exhaustion online

On April 24, 2012 the Advocate General Yves Bot delivered his opinion in the UsedSoft case (C-128/11) concerning exhaustion in digital products that have not been distributed on a material carrier.

I think this may be one of the more interesting and bold opinions in the area of copyright law, although I am aware the competition is stiff. Should the Court accept the AG’s views this may even be a small forerunner of important changes in how copyright law adapts itself to the internet era.

The questions asked by the Bundesgerichtshof were :

1. Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) [...]

ACTA in Poland – A Story of Passion

The clouds of dust raised by the turbulent discussion about ACTA in Poland seem to be slowly settling and the time has come to make some evaluations. What has happened with ACTA in Poland has surely caught the attention of the world (or at least Europe), but perhaps the scale of it is still underestimated. When word got out that ACTA was to be signed by the Polish government only IP specialists knew what it was. Nevertheless, in a very short time the Polish internet started buzzing and a moment later exploded in fury. Government internet sites suffered from hackers’ attacks and students (true story!) requested if they could skip class and demonstrate against ACTA. All this time the informa [...]

Copyright Exceptions and Consumer Rights

One may sometimes get the impression that competition law and consumer protection law can shed new light on any other regulation of a legal system, no matter how well established. An interesting example of this trend has been provided by a recent decision of the Polish Court for the Protection of Competition and Consumers in a case concerning unfair contract terms applied by a library (judgment of December 9, 2011, XVII Amc 113/11).

It seems interesting to report it here because it combines several copyright related issues and may be generally relevant for contractual restrictions concerning copyright exceptions. Before going into the details, it is, however, necessary to set an outline of t [...]

Authorship by deletion

There are many interesting ways one may become a co-author of a copyright work, but in one of its recent decisions the Polish Supreme Court seems to have added a new and quite interesting option. You can namely become a co-author if you delete a few sentences from a scientific article, sentences you believe are factually incorrect.

The court’s decision was made based on the following facts: The defendant wrote an article about music therapy, i.e. applying music in medical treatment. Not being a physician herself, the author had requested three colleagues to verify the article and, as a result, they suggested deleting some parts, which, in their view, were not compatible with accepted medic [...]

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