How would you define copyrightability? Professor Ryszard Markiewicz, one of the most influential names in the area of copyright law in Poland, author of the book 'Playing with copyright' published by Wolters Kluwer SA, creatively captures the issues concerning the protection of intellectual rights.
An exhaustive chapter of the book is devoted to photography - the regulation of this area of copyright law. We are publishing a excerpt that stimulates one's imagination and perfectly captures the atmosphere of this brilliant venture into the world of copyrights.
Chapter III Photography - 7. Stupid game
In his book, professor Markiewicz takes up a certain perspective concerning a unusual photo published in the press – exhibiting few night-shift nurses 'having fun' with a 2lb premature infant.
The situation led to a criminal case, but the court ultimately ruled in favour of nurses’ acquit ion.
Nevertheless, nobody burdened themselves with the copyright issues. And there are few of those present: Who is the author of the piece? What was the basis on which the poem was released to the press? Should the author of the photo receive any royalties? Was the copyright law, right to physical integrity, or precedence law in any way tampered with? Does it include a likeness of a nurse or an infant? Were the distribution rights unlawfully bypassed? Was the Article 23 of the Polish criminal law broken?
To fully grasp the subject matter of this text, we need to settle the issue of the above-mentioned photo – is it a work of art? During our lectures with Janusz Barta, we had divergent stances. Janusz regarded the photo as a trivial, common snapshot, while I managed to find some artistic value in it - even going as far as comparing it with 'The Creation of Adam' – Michaelangelo’s famous piece.
Which is why I valiantly defended the theory of the individual interpretation of the photo, mainly because of the mutually corresponding positions of the nurse’s and the infant’s hands.Having established that the photo is indeed a work of art, we are left with another question: Was the press permitted to use the photo in the article? After taking into consideration that the photo wasn’t released before (it would require the authors’ consent), reprint as stated in Article 25 of the Polish Copyright law, is not possible, and only available way to validate the action is a referral to the Article 10 of the European Human rights convention. I believe it is justified to invoke this article while investigating the situation. Apart from the afore-mentioned situation, the lawful owner (the author of the photograph) should be entitled to either the gratification for the use of the photo in the paper if it’s decided that it’s utilization in the paper wasn’t unlawful, or to make a claim following the infringement of author’s property right.
One should also consider the issue of protecting the author’s personal rights: the question of authorship (it wasn’t stated) and the question of integrity (the photo was 'drastically' cropped). While the issue of authorship rights infringement is obvious, the violation of integrity can be justified with the intent of protecting the nurse’s personal data.
Finally, while this goes beyond the fixed meaning of author’s copyright, we can investigate the photo for possible violations of personal rights. Regarding the nurse, there is no real basis for applying Article 81 of the Polish copyright law, as the photo does not include her likeness, but the Articles 22 and 23 of the Polish civil law give us different means to evaluate the case. The dissemination of this photo leads to the defamation of the nurse. We can assume nonetheless that the factual circumstances may have provided a legal basis for nullifying the offense, the offense having been committed in public interest. The public image of the infant was also violated by the lack of possibility to remain anonymous.
This approach essentially expands the scope of protection: the subject of exclusive rights are not only works of an individual character in the traditional sense of this concept, but also those whose exploitation without the consent of the photographer would constitute an unethical act. In essence, therefore, the current copyright includes in the exclusivity acts of unfair competition, protecting the effort, ideas, devoted time, reflexes (catching a moment to take a photo), the photographer’s perception of unusual qualities of the nature being photographed. You should be aware that this direction of interpretation of a photograph’s copyrightability may affect the protection and its scope in relation to other kinds of works. I fear recognizing as creative (in the light of the copyright law) such results of intellectual work as: an idea, perception of the special nature of a particular product in a different context, isolating a product of nature by the creator or manifestation of ordinary objects or products of nature as works of art.
Given these observations, it seems that a rational solution would be, just as in the German copyright law, to introduce a parallel (and hence next to the protection of author's work – a photo) protection of photographs under the related rights.
In Poland Markiewicz's book is available under the title 'Zabawy z prawem autorskim', released by Wolters Kluwer SA.
Photo: Markiewicz’s portrait by Judyta Papp
Ryszard Markiewicz - Professor of legal sciences, specialist in Polish and EU intellectual property law. Prof. Ryszard Markiewicz has been the Chairman of the Copyright Commision and for many years a director or deputy director of the Intellectual Property Law Institute of the Jagiellonian University in Cracow, one the most important European scientific and research centres for copyright and patent law, competition and consumer law, media law, etc.
Prof. Ryszard Markiewicz has notable achievements in the field of research and legislation related to copyright law, Internet and media law, protection of personal data and databases, unfair competition law and protection of moral rights. He is the author or co-author (mainly with Prof. Janusz Barta) of over a dozen landmark books in the above areas of law, including commentaries, handbooks and monographs, and some 200 other publications. Commonly recognized are his books on copyright, unfair competition, Internet and computer law, privacy law and media law. Those books offer a detailed approach to the substantive and procedural issues, including penal and tax aspects, etc. He is the founder partner of Markiewicz & Sroczyński law firm in Krakow.