Copyrights Regulation In Poland
Copyrights in Poland – Key Facts
|Key Copyright Regulation|
|What is subject to copyrights protection?||Work – i.e creative product of human being that is established in any form|
|Copyrights registration||Not required. There is not copyrights register in Poland|
|Types of copyrights||Economic copyrights and moral copyrights|
|Copyrights duration||Economic copyrights last 70 years; while moral copyrights are unlimited in time|
|Claims for copyrights infringement||
|Limitation period of copyrights claims||Various limitation periods may apply, amongst most common 3 or 6 years periods|
|Transfer of copyrights||Possible upon conclusion of written contract|
|Exclusive copyrights license||Requires written contract|
|Perpetual copyrights license||Not possible. Maximum duration of license is 5 years.|
|Criminal liability for copyrights infringements||Yes – copyright infringements may fall under various criminal offenses|
What is the copyrights law in Poland?
Copyrights in Poland is regulated in the Copyrights Act. It protects results of human creative activity, which are essential element of various artistic or business ventures. Copyright protection is crucial for variety of industries – starting from art, though urban & construction projects, music, films, software, games and ending on articles, photographs, websites.
Subject of Copyright
The object of copyright is work and it must meet the certain requirements to be protected under the Copyright Regulation of Poland (the Copyright Law of 4 February 1994):
- it must be a product made by a human being – only an individual can bring a work into creation;
- it must be a manifestation of creative activity (originality);
- it must be possible to establish it in any form – third parties can become familiar with both the form and content of the work.
Copyright exists for any works that meet the above requirements. In particular, copyright subsists in:
- expressed in words, mathematical symbols, graphic signs (literary, journalistic, scientific, cartographic and computer programs);
- plastic structures;
- the making of musical instruments, including violins;
- industrial design;
- architecture, urban planning and town planning;
- music and verbal music;
- musicals, choreography and pantomime; and
- audiovisual (including film).
Copyrights registration in Poland
There is no system for registration of copyright in Poland. Copyright protection is granted automatically, as soon as the work is created and there is no need to complete any formalities in this regard.
Copyrights holder / owner / creator
In Polish Law – as a general rule, the first owner of a copyright is the creator/author. The creator/author shall be presumed to be the person whose name appears as such on copies of the work or whose authorship is otherwise made known in connection with the distribution of the work.
However, there are cases where the first owner of the copyright is someone other than the creator/author, i.e.:
- the producer or publisher – who holds the copyright to a collective work, e.g., an encyclopedia; or
- the employer whose employee has created a computer program as a result of the performance of duties from the employment relationship.
We can also distinguish the concept of joint ownership of copyright – where a work is the result of the creative and individual work of more than one person. The sizes of the shares of co-authors are presumed to be equal. However, each co-author may request that the size of the share shall be determined by the court, based on the contributions to the creative work.
Each co-author may exercise copyright to his or her part of the entire work if such part has independent significance. However, the consent of all co-authors is required to exercise copyright in reference to the entire work. In cases where such consent is lacking, any co-author can petition a court to make a decision, with due consideration for the interests of all co-authors.
Rights of copyrights-holders
Copyrights – holders have the exclusive right to allow or restrict the following:
- recording and multiplication of the work – production of copies of the work by a specified technique, including printing, reprography, magnetic recording and digital techniques;
- trading in the original or copies on which the work was fixed – placing on the market, lending or renting of the original or copies; and
- dissemination of the work in a manner other than specified above – public performance, exhibition, display, reproduction, broadcasting and re-broadcasting, as well as making a work available to the public in such a way that everyone can have access to it in a place and at a time chosen by themselves.
What is principle of exhaustion of rights?
In the laws of Poland – once the original or a copy of a work is placed on the market in a territory of the European Economic Area (EEA), the right to allow further trading of the work in a medium in the territory of the EEA is exhausted. Exhaustion of the right does not include rental or lending of the medium on which the work was fixed. Exhaustion of the right only relates to the issue of circulation (distribution) of the work fixed in a tangible medium (e.g. in the form of a disc, video cassettes, etc.).
Types of copyrights
Copyright in Poland may be divided in two sets of rights:
- economic copyrights – which are the rights of a ownership nature. According to such rights, the author has the exclusive right to use and dispose of the work in all fields of exploitation and to collect remuneration for the use of the work.
- moral copyrights – which are the rights that protect the author’s relationship with the work. These rights are unlimited in terms of time and are not subject to being waived or sold. In particular, the author has the right to: authorship of the work; mark the work with his name or nickname or to make it available anonymously; inviolability of the content and form of the work and its reliable use and supervise the use of the work.
Duration of copyright protection
Duration of protection of copyright in Poland is different for economic copyrights and for moral copyrights.
|Economic right||Expires after lapse of 70 years after the death of its creator. If the work had several co-authors, then economic copyrights expire 70 years after the death of the last co-author|
|Moral rights||Does not expire|
Trade with copyrights
Economic copyrights may be traded by sale or by grant of license. Each form of commercialization is different and entails different legal effects.
Transfer / sale of copyrights
The transfer of copyright relates only to the manner of use (fields of exploitation) that are indicated in the agreement. Moreover, there must be an express provision in the agreement that it relates to the transfer of copyright, otherwise (in the absence of an express provision), the creator/author is deemed to have granted a license. In Poland – sale / transfer of copyright requires written form, under pain of nullity.
Additionally, it is important to highlight the following restrictions concerning agreements pertaining to the transfer of copyright.
- it is prohibited to include in the agreement any fields of exploitation which are unknown at the time the agreement is concluded; and
- it is prohibited to include in the agreement all works or all works of a certain type by the same author that may be created in the future.
To acquire a copyright licence, it is necessary to conclude an agreement. The form of agreement depends on the form of copyright license. An exclusive licence requires a written form of the agreement under pain of nullity, whereas, a non-exclusive license does not require any specific form. A copyright licence agreement must specify the work to which it relates and the rules for the use of the work. In addition, copyrights license agreement must specify:
- the place of use of the license (if no place is specified, it is assumed that the license may be used in the territory of the country where the licensor is established);
- the duration for which the license agreement is concluded (if the agreement does not specify the duration of the license, the licensee may not use the work for an indefinite period, but only for a period of five years);
- type of license: exclusive/non-exclusive (if not specified, it is assumed that a non-exclusive license has been granted); and
- remuneration (if the license agreement does not cover that, it is assumed that remuneration is due for its granting).
Maximum period of license / lifetime license
In reference to duration of license it’s worth to add, that a license concluded for a period longer than five years is transformed into a licence granted for an indefinite period after the expiry of that period, which can, in principle, be terminated. Polish law does not explicitly provide for the possibility of granting perpetual (irrevocable) licences, but more recent case law allows for this possibility.
It’s also important to highligth some specific regulations for software license agreements for computer programs. Such licence agreements may not deprive the licensee of the right to:
- make a back-up copy if this is necessary for the use of the computer program;
- observe, study and test the functioning of a computer program in order to learn its ideas and principles by a person having a right to use a copy of a computer program if, being entitled to do so, he does so in the course of introducing, displaying, using, transmitting or storing the computer program; or
- (under certain conditions) reproduce the code or to translate its form if this is necessary to obtain the information necessary to achieve the interoperability of an independently created computer program with other computer programs.
A claim for copyright infringement may be brought by a copyright owner but also by an exclusive licensee (to the extent covered by the licence agreement), unless the licence agreement provides otherwise. A claim may also be made by the CMO if the work to which the process relates is under the collective management of this specific organisation. Cases for the protection of copyright fall within the jurisdiction of district courts. Such proceedings are two-instance, and only a final judgement of the court of first instance or court of second instance (in the case of an appeal) constitutes a permanent court order.
Defenses against copyrights protection
Numerous exceptions are available that can serve as a legal defense against an infringement claim. They include, for instance:
- personal use;
- parody, pastiche and caricature;
- public broadcasting of a radio or television programme;
- using of works for the benefit of the disabled; and
- use of works for public safety purposes.
Security order / interim orders – copyrights protection
It is also possible to obtain temporary security for claims arising from copyright infringements. For those purposes it is necessary to submit an application in which legal interest and justification of security are set out. In cases for the protection of copyright, such an application should be submitted within 6 (six) months from the date on which the party became aware of the infringement of its exclusive right. On the basis of the application filed, the court issues a security decision, which is enforceable upon its issuance.
It is also possible to submit an application for securing evidence. The methods of security include, in particular, the collection of goods, materials and tools used for the production or distribution of documents.
Damages for copyright infringement
Damages for infringement of copyrights are determined according to the decision of the aggrieved party, either:
- on a general basis, or
- by payment of a lump sum of compensation equal to twice the appropriate remuneration which, at the time of the claim, would have been due as a result of the rightsholder’s consent to the use of the work.
Damage calculated on a general basis consists of loss suffered and the benefits that the injured party could have achieved if the damage had not been done. In a case of a claim for damages under the general rules, fault must be proved, along with the amount of damages and a causal link.
Costs and duration of proceedings
Typical costs in a copyright protection case include, primarily: payment for a claim, attorneys’ fees and other court fees such as the cost of an expert opinion.
The duration of the proceedings depends on a number of factors, including the nature of the dispute and whether or not expert evidence is necessary. Practice shows that completion of proceedings before the court of first instance should take approximately one year, and in case of proceedings before second instance also at least one year. However, more complex cases may take longer to resolve (up to two to three years at each instance).
Limitation period of copyright claims
Determining the limitation period for copyright claims is a complex issue.
Generally, claims for copyright protection expire within the time limits specified in Art. 118 of the Civil Code. Pursuant to the aforementioned article, the limitation period is six years, and for claims for periodic benefits and claims related to running a business – three years. The end of the limitation period falls on the last day of the calendar year. The aforementioned shorter three-year limitation period refers to the characteristics of the entity entitled to the claims, and not the infringer. Therefore, if the claims are made by the creator himself, a six-year limitation period should be assumed, whereas if the claims are made by an entity conducting business activity and is connected with it, e.g. a program producer or the publisher, a three-year limitation period should be assumed.
However, the rules described in the paragraph above do not apply to claims for damages to which art. 4421 of the Civil Code apply. Pursuant to this regulation, a claim for compensation for damage caused by a tort shall be commenced within three years from the date on which the aggrieved party learned or, exercising due diligence, could have learned about the damage and about the person obliged. However, that period may not be longer than ten years from the date on which the tort occurred.
Nevertheless, when the damage results from a crime or misdemeanour, the claim for compensation for damages must be commenced within 20 years from the date of the crime, regardless of when the injured party learned about the damage and about the person obliged to repair it.
Criminal liability for copyrights infringements
Criminal liability for offenses against copyright is regulated in articles 115-124 of the Copyright Law. We can list the following types of offences:
- plagiarism and other infringements (such as misleading people about authorship of the work);
- unlawful distribution;
- unlawful fixation or reproduction;
- circulation of illegal copies;
- security removal devices; and
- obstructing the control of use.
There are different types of sanctions, depending on the type of offence. These are: fines; restriction of liberty and imprisonment. The fine shall be imposed in daily rates, ranging from 10 to 540, and the amount of one rate must be between PLN 10 and PLN 2000. The restriction of liberty is imposed between one month and two years. Imprisonment is imposed in months and years. Depending on the type of offence, the lowest stipulated imprisonment penalty in reference to copyright crimes is one month and the highest is five years. The court can also rule on the forfeiture of objects derived from the offence, even if they are not the property of the offender.
Collective management of copyright
In Poland, there are the following organizations for the collective management of copyright or related rights (hereinafter as: CMOs):
- KOPIPOL (Association for Collective Copyright Management of Authors of Scientific and Technical Works) dedicated to scientific and technical works;
- REPROPOL (Repropol Association of Journalists and Publishers) dedicated to periodical publications and works that have an independent meaning and make up the content of periodical publications to the extent that these rights are vested in publishers;
- SAiW COPYRIGHT POLSKA (Association of Authors and Publishers COPYRIGHT POLSKA) dedicated to literary, scientific, journalistic and encyclopaedic works to the extent that these rights serve the publishers;
- SAWP (Association of Artists Performing Musical and Word-Musical Works) dedicated to musical and verbal-musical works;
- SFP (Polish Filmmakers Association) dedicated to audiovisual works and related rights for videogram producers of audiovisual works;
- STL (Association of Folk Artists) dedicated to works by folk artists;
- STOART (Association of Performing Artists STOART) dedicated to musical and verbal-musical works;
- ZAiKS (Association of Authors ZAiKS) dedicated to works of words, music, word-musical, choreographic, pantomime and works of words, music, word-musical and choreography in an audiovisual work;
- ZASP (Association of Polish Stage Artists ZASP) dedicated to copyrights of theatre directors and stage designers, as well as related rights of performers: actors; soloists; singers; and dancers; and
- ZPAV (Association of Audio-Video Producers) dedicated to music phonograms and music videograms.
The activity of CMOs is regulated in the Act of 15 June 2018 on collective management of copyright and related rights (Dz.U. z 2018 r. poz. 1293). The aforementioned act contains provisions regarding:
- activities of CMOs;
- granting permissions for CMOs;
- supervision over CMOs; and
- activities of the Copyright Commission.
CMOs act within the scope of the authorisation granted to them by the Minister of Culture and National Heritage, which is also an external supervisory authority towards CMOs.
Anticipated legislative changes in copyrights law
We are anticipating significant legislative changes regarding implementation of two directives of the European Parliament and of the Council (EU) into the Polish legal order. These are:
- Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 (hereinafter referred to as the SATCABII Directive); and
- Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 (hereinafter referred to as the DSM Directive).
The DSM directive deals with aspects of the exploitation of works in the digital environment. It introduces new forms of fair use, measures facilitating access to works not commercially available and also the possibility of granting extended collective licences. The Directive also introduces new rules on the remuneration of authors and performers to ensure that the remuneration due to them is fair.
The purpose of the SATCABII directive is to create the conditions for wider dissemination in Member States of television and radio programmes from other Member States, to the benefit of all users throughout the European Union.
FAQ – copyrights regulation in Poland
What is the duration of copyrights protection in Poland?
As a rule economic copyrights last 70 years in Poland. Moral copyrights are unlimited in time.
What is subject to protection of copyrights law in Poland?
Copyrights law in Poland protects works, defined as creative product of human being that is established.
Is AI work protected by copyrights in Poland?
No, works created by AI are not protected by copyright in Poland. Only human product is protected by Polish legislation.
Is there a register of copyrights in Poland?
No there is no register of copyrights in Poland.
Does Polish law permit perpetual / unlimited licenses?
No, Polish does not permit perpetual and unlimited in time licenses. As a rule license may be granted for the maximum period of 5 years.