Polish copyright 20 years after the adoption of the Act on Copyright and Neighbouring Rights of 4 February 1994

Abstract

The Act on Copyright and Neighbouring Rights of 4 February 1994 had been drafted in a new regime, shortly after the first steps in the political and economic transformation and the day before Poland joined the European Union. All this determined the necessity to adjust the law on copyright to the requirements of the new regime and to the EU standards.

The characteristic feature of this Act is a frequent and ample reference to Polish rich tradition of wide interpretation of authors’ protection present in the Act on Copyright and Neighbouring Rights of 1926. This reference was made first and foremost to the interpretation of the subject of copyright protection and the essence of copyright law which includes authors’ moral rights, unlimited in time, universal, non-transferable and executed by author’s heirs after his death. Authors’ rights also encompass property rights originating from the fact of a creation of a work. The Act regards copyright economic rights as a reflection of ownership, while at the same time the author may enjoy these rights within all known as well as future fields of exploitation, erga omnes, taking into account the consequences of the intangible character of the work. These rights include the exclusivity regarding the use and disposal of a work by any means, unless the Act provides for a limitation with regard to the allowed use. The protection is also limited in time: originally it used to be 50 years following the author’s death, being extended to 70 years nowadays. An important feature of this new regulation is exclusion of the unlimited disposal of a copyright economic right. In specified cases, the author is vested with a non-transferable right to remuneration and
compulsory intermediation of society for collective management of copyright or related rights. Regulating collective management of copyright is a novum of the Act, especially in creating a system of approval with regard to the tariffs used by collective management societies for collection of remunerations and for appointment of the Copyright Commission – a body approving tariffs presented by collective management societies. A characteristic feature of the Act is provision of widely understood liability for an infringement of a copyright, both moral and economic, by civil and criminal means.

The Act has been amended many times. And yet, notwithstanding the merit of the extensive works on the first original text as well as the major works on the act during the first period of its existence, as of 2003 the legislative process has brought up subsequent novelties to the existing law, including the last one made in 2010, which in consequence raises objections as to the proportionality, legislative correctness and social justice, in particular with regard to proper protection of the rights of authors and artists, being a weaker party to a market contract. Recent drafts of amendments also raise major objections with regard to maintaining the necessary balance, as well as with regard to legislative correctness. Its reflection can be seen in a defective regulation of audiovisual works, defects and gaps in regulations on the Copyright Commission, in the system of approval of tariffs and, in particular, the specific rules on levies compensating consequences of copying for own private use.

Major objections also arise with regard to the recently published draft proposal of changes, covering in particular orphan works. Particularly severe is avoidance, in the course of the legislative works, of controversial issues between organisations of users and authors or artists, within the fields requiring regulations for some time now, such as issues related to the audiovisual remunerations and reemission.