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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 [...]

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 [...]

Scope of copyright contracts – decision of the Supreme Court of March 24, 2011, I CSK 450/10

One of the recent judgements of the Polish Supreme Court provides a good opportunity to review the basic rules applying to copyright contracts in Poland. The Polish copyright law treats copyright contracts in a rather strict and formal way. It specifically states that both assignment and license contracts only cover the co-called fields of exploitation of copyright works (i.e. uses of works economically and/or technically independent) that have been explicitly named in the contract itself. If a contract does not name a field of exploitation, no assignment or license with regard to the omitted kind of use may take place. This rule seeks to protect authors, making them aware of the scope of th [...]

‘Old’ copyright contracts and new forms of exploitation – Supreme Court, December 2, 2010, I CSK 33/10

The commented decision may at first glance appear to be of limited importance only, but after closer examination it contains two interesting points of more general significance.
The basic facts are the following: the plaintiff, a collecting society ZAIKS, brought a claim against two companies demanding payment for selling copies of the film “Rejs” (“Cruise”), which was bundled with a monthly “Cztery Kąty” (i.e. a disc with the movie was sold as a bonus with the magazine). One might add that the movie “Rejs” is a cult movie in Poland, many expressions and dialogues from it having entered the everyday language, but in this case it did not matter at all.
Polish copyright law pr [...]

Supreme Court, 22.06.2010, IV CSK 459/09 – Subject matter of copyright

What is and what is not a copyright work is a question even copyright lawyers find difficult to answer when confronted with subject matter on the verge of the required standard of originality. Polish copyright law has quite a long tradition of setting the threshold rather low, which may encourage frivolous lawsuits forcing courts to ponder whether simple graphic designs, short lines of text or even names should or should not be protected by copyright law. Protection by copyright law has an obvious advantage for plaintiffs since in Poland liability for copyright infringements is rather far-reaching. Not only is it strict as far as cessation of infringement is concerned, but also damages in th [...]

Poland: Collecting Societies – New Regulations on Tariffs

It is a cliché that collecting societies play a significant role in shaping the practice of copyright contracts, however the fact that it is a cliché does not make it less true. Therefore, legal rules concerning collecting societies are of huge interest for copyright lawyers, especially when they are new and offer an uncharted territory of opportunities. Polish copyright law has been based on the assumption that tariffs and contracts of collecting societies should not be subject solely to forces of competition and free market, but require a more detailed regulation. One of the characteristics of the Polish system has been a regulation of tariffs applied by colleting societies. Such tariffs [...]

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