The spirit of Copyright Act: 20 years of dilution

Abstract

In the paper, numerous instances and reasons for the decomposition of the Act on Copyright and Related Rights in the recent two decades have been identified, and the following are mentioned with reference to the fundamental principles of the author’s rights: incorrect amendments, wrong implementations of the international regulations, imperfect functioning of the juridical doctrine and practice, wrong judicial decisions at all levels, as well as ignorance of law among
creators and users, overwhelming influence on the legislation process on the media and various lobby groups, and politicians’ extra-parliamentary interference in the application of the Act. The merchandising of the Act and the perception of author’s rights from the perspective of clients’ needs and users’ commercial purposes is also indicated, showing that the author’s moral rights and unique creative works are pushed into the background. The necessity of a comprehensive regulation pertaining to the transfer of copyright and related rights within one act has been postulated and an  example of a nonsensical application of fair competition rules to the collective management of author’s rights is given. Dilution of copyright is also analysed on the basis of the explanatory memorandum to the Act of 1994 on Copyright and Related Rights which underlined its adoption. In this scope, a reference is made to the departure from the correct regulation of the droit de suite, the audiovisual work and the author’s royalties related thereto, the regulations on collective management, the contra legem interpretation of the presumption of law (and among other things CMOs’ authorizations and the acquisition of economic rights to the audiovisual work), the infringement of mandatory rules applicable to the act within the transfer of the author’s economic rights, and misapplication of the provisions related to the reprography levies. The examples of the provisions implemented by the amendments to the Act illustrate the failure of the legislative technique and the necessary application of convoluted interpretation methods to reach the meaning of Article 33¹ and subsequent articles. Disrespect to the Act is also confirmed by the fact that Polish courts do not apply statutory terms and  conditions (e.g. Article 80 of the Copyright Act). Many adverse effects of the Act’s application are caused by the doctrine which does not provide for any interpretation of numerous legal terms and institutions (e.g. the ‘total amount of charges’ in Article 110¹³ section 5 point 2; ‘other means of public presentation’ in Article 70 section 2¹ point 3 of the Copyright Act). The proposed amendments to the Act, which depart even further from its spirit and impede adequate protection of the rights of authors, performers and the
rights holders of related rights are also analysed.