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   Apr 18, 2016
 
  •  YOU MAKE IT, YOU OWN IT - IP RIGHTS AWARENESS IN POLAND, PROGRESS AND FUTURE
Judyta Papp in conversation with Professor Elzbieta Traple
Judyta Papp: What is intellectual property protected after all?
Elżbieta Traple: You have asked a very difficult question to answer. Lots of books have been written on this issue and economic studies have been conducted to find out the economic importance of intellectual property protection and its influence on the development of creative works.

According to the classical explanation – it is the theory of award and incentive or social contract. Providing creators with legal protection, is to stimulate development and dissemination of creative works: society respects the legal protection of a work in return for its availability, which improves knowledge, increases mass participation in culture and fosters creative activity. There is also the equitable theory: if someone benefits from someone else’s creative activity, the creator should also participate in gains, which should be secured by granting exclusive rights. In one famous, apparently authentic event from the 19th century, is that musicians in a Parisian restaurant refused to pay for the meal until the owner had paid them for their music played in the place. In the 19th century few artists and writers earned their living exclusively from their profession; a large number simultaneously embarked on some other activities.
During the French Revolution the concept of intellectual property came into being as one of basic human rights. Basically, it was as late as the 21st century that such heated discussion centered on the sense of protection of intellectual property, which is undoubtedly connected with the rapid development of the Internet. Supporters of the complete openness of the Internet at one stage thought that it was both possible and necessary to break down all the barriers to access what comes up on the Internet. What they forgot was that nothing is for free: you always have to pay for making use of someone else’s work or service. Today for example we have a clear commercial message: if you want to watch for free, do not turn off the advertisements. The obvious question remains whether these advertisements also pay the entities which provide the content for dissemination. And here the principal regulating role of copyright is revealed! In the contemporary world, intangible goods play such a significant role, not merely cultural but also economic, that it is not possible to leave their status beyond legal regulation. The problem only consists in determining reasonable borderlines in terms of protection, such that it takes into account the justified interest of the creators on the one hand and also the justified interest of the user on the other. After all, they are not in principal in contradiction: both are interested in worthwhile creations being brought and disseminated. Therefore, the legislator is obliged to properly balance these complementary joint interests.
Try to imagine the contemporary world without intellectual property protection: would creators have to live on additional professions or social benefits?
First of all, I believe that such a diverse media service market wouldn’t have been developed. Not only creators take advantage of copyright as the author is just the beginning of economic relations: the path goes further to service providers who deliver specified content to the audience. Thus, it’s important to establish such rules of conduct which would ensure that the service provider shares the profit with the creator in a fair manner. It’s not easy and there’s often the criticism that copyright does not protect creators but big entrepreneurs or producers who impose their conditions on creators in terms of sharing their works. However, it is the role of the legislator to properly implement regulations that would ensure a balance of interests between parties in contractual relations. The legislator must also remember that creators’ revenues are not as regular as those in permanent employment. The creator is most frequently a “self-employed” person, therefore, he or she must see to the payment of due remuneration.
What’s the difference between stealing a work and stealing a watch or a mobile phone?
“Stealing a work” may have various forms - it may be a typical plagiarism or distribution of some other person’s work in the form of pirate copies, for example through selling them on a market or distributing them on the Internet. Plagiarism, first and foremost, is morally harmful to the creator, while pirate distribution compromises his or her justified and legally protected property interest.Like stealing a watch, also pirate distribution of a work is a theft, whereas in the case of stealing a work - the loss to the authorized person could be incomparably higher. In this case, theft consists in depriving the injured party of the profit from executing its copyright. A work of an author - as an intangible good – is characteristic as many entities may use it at one time and in different places, therefore, the authorized person may grant many licenses. If a work is shared, for example on the Internet, without the consent of the authorized person (pirate copy), then the attractiveness of its lawful purchase is lower (in the case of the Internet - the purchase of the access to it). If a pirate copy of a movie appears on the Internet before the premiere of the movie, then the producer incurs losses in sales of cinema tickets and it won’t be able to amortize the expenditures borne for the purpose of production.
Copyright is the basic personal right of the creator, mentioned as the first in the catalogue of personal copyrights in Article 16 of the Act on Copyright and Related Rights. Copyright is the most important personal right to which the creator is entitled. However, prosecution and courts unwillingly recognize this damage. What is the reason for that?
I understand that you mean here the violation of personal property by unlawful sharing of works without copyright. Indeed, it is noticeable that there is the tendency to treat such a violation less seriously. But for each creator, it’s important that artistic works are recognized under his/her name as it contributes to his/her position in the world. In the Polish civil law, there is the clear division between the property damage and financially compensated moral damage. In case of intellectual property rights violation, it is possible to claim both damages, provided that the essence of personal property is violated, which is the right of paternity (in the times of political correctness, one should say the right of paternity or maternity). On 17 March 2016, the Court of Justice of the European Union issued the decision (as a result of a preliminary ruling) which states that the person - injured as a result of an intellectual property right violation - who claims material damages, may demand the compensation of the personal damages he or she incurred. The question regarding the ruling was submitted by the Spanish Court which doubted whether the person injured by the violation of the intellectual property may claim damages for the material loss - compensation for a damage made by the very act. The Court of Justice decided that the regulations of the directive regarding the execution of the intellectual property right should be interpreted in the manner in which the injured person claims damages on account of material damage based on the sum of license fees, royalties and fees payable if the violating party applied for the license. He or she may additionally demand compensation for the incurred damage. This decision gives equal priority to financial compensation for intangible damages, resulting from the omission of copyright, as well as tangible damages regarding the unlawful distribution of a work. In case the of property copyright violation, we’re not able to financially calculate the intangible damage, however, the situation isn’t different from the one we’re dealing with in case of violating another personal property, protected in the Civil Code.
The UK government is carrying out a lot of educational activities aimed at raising public awareness of the necessity of copyright protection and many institutions have been established for this meaningful purpose. The Polish Copyright Act is relatively logical. Why therefore is there still not enough being done to make the public aware of what is forbidden and what is allowed?
Such actions should be taken as early as at the level of school education and followed at institutions of higher education. The Polish Patent Office runs a number of campaigns targeted at schools. Similar ideas could come from the Ministry of Culture and National Heritage. Distinguishing between legal and illegal sources should be taught. Many Internet users pay for access to particular materials believing that they pay for copyright, whereas the money goes into the intermediary’s pocket only. In Europe, many praiseworthy initiatives are being launched that deal with making creative works from the public museum and library collections available as widely as possible. The European project has come into being and so have a number of domestic programs making digitalized educational materials available for free or for a very low fee. It’s a pity schools make use of them so rarely as at the same time they could also teach how to distinguish between legal and illegal content.
Does the Constitutional Tribunal take into consideration the realistic practice of implementing the legal system while referring the artists, who are the victims, to undertake their civil claims in the criminal proceedings?
I have been the attorney for the Polish Filmmakers Association and, representing its interests, I also represent it as far as infringement copyright trials are concerned. Undertaking the criminal procedure has been considered many times, although it should be remembered that the criminal proceedings are truly more painful for the victim than the civil proceedings. Thus, the association has always decided to commence only civil proceedings. To me it is surprising that the Constitutional Tribunal pointed the criminal proceedings as the more appropriate solution. Naturally, this type of proceeding has its pros - most of all, it is definitely cheaper, however, the knowledge on copyright is not as extensive. We should not be surprised with that, as this is just a small part of their activity and, supposedly, it is thus treated just as part of their training. Nevertheless, I think that after this judgment of the tribunal the number of criminal cases commenced after a complaint by those entitled to do so will increase, if the tribunal itself has indicated so.
What practical effects can we expect after the much-publicized ruling of the Constitutional Court from June 23, 2015 (SK 32/14)?
Well, the effects are clear, the simplified evaluation of compensation with prevention and benefits arising from the violations by the infringer is no longer possible. According to the directive in the field of intellectual property rights, the compensation should play not only the compensative role, but also the deterrent role. The flat-rate compensation model was intended to help the victims, so that they were not required to specify the amount of damages, which can often be very difficult from the evidential point of view (the victim does not have access to the accounting records of the infringer). In many cases the one-time appropriate compensation would be inadequate, because it would not meet the criterion of prevention, and puts those who honestly pay for the use of works at a disadvantage and their competitive position is much weaker. The issue of the so-called flat-rate compensation has been thoroughly discussed during the drafting process of the 1994 bill. Back then it was stated that the infringer, who must pay the one-time appropriate compensation would be more likely to risk the unlicensed use again, as he would not lose much. It seems that the main shortcoming of the threefold compensation (applied only in the case of culpable violation) was the lack of freedom of the court’s decision in that regard. It has been emphasized that every situation is different and that the court should have the ability of determining the equitable compensation according to its own evaluation. It seems that the Polish legislator should not decline the possibility of claiming damages in an amount higher than the accepted compensation, as the decision on one-time compensation will not often cover interests arising from the delay in service (one should take into account that the amount of equitable compensation is determined only during the verdict) and will not fulfill the preventive function. Often such a court compensation will not even cover the costs of proceedings. The settlement mentioned in the aforementioned verdict was also heavily oriented towards the specific actual state which was the reason behind the constitutional complaint, in my opinion that is not correct, because the Constitutional Court does not resolve a particular case, but examines the compliance of a decree with the constitution. Let us remind ourselves that the plaintiff was an entrepreneur who was running a business, based on the use of copyright managed by an organization of collective management. The Court decided that presently the creator cannot be recognized as an entity with a weaker market position, and that it is the entrepreneur who is the weaker party in relation to the organization of collective management. It seems that the Constitutional Court had forgotten the fact that there are also creators who manage their rights individually and that they are also affected by the consequences of the court ruling. With full understanding of constructive concerns about the subject in article 79 of the law on claims gradation, I am of the opinion that the possibility of twofold compensation should be upheld in cases of a wrongful act. Of course it can be argued that the victim can choose other claims, such as the issue of wrongful benefits or compensation claim on general terms, but if we want to keep the possibility of lump sum payment (as clearly implied by the enforcement directive), then it is meaningless to consider it as a single equitable compensation.
The process of taking away the weaker creators’ rights is progressing. What about Polish conclusions from the recent opinion of the Advocate General, dated 24 November 2016, on the enforcement of intellectual property rights, regarding the compatibility of the national law with the interpretation of art. 13 of Directive 2004/48 /EC?
On 24 November 2016 the advocate general (AG) delivered her opinion in the case concerning Polish copyright and interpretation of the EU Directive on the enforcement of intellectual property rights. The decision of ECJ in this case will affect not only the Polish law but also other European legislations. Unfortunately, in my opinion, the justification presented by AG is not coherent internally . The AG states that the national rule, under which the right-holder may claim a sum which equals the sum of two or three times the amount of the fee which would have been payable if the right-holder had given permission for the work to be used, does not contradict the directive. However at the same time AG argues that the right-holder in the proceedings regarding infringement should demonstrate that their case is special, in the sense that to apply the fixed sum of two or three times the normal fee is “appropriate” and proportionate to the damage suffered. I think, that AG throws a baby out with bathwater.
The Advocate General is very incoherent, as she is fully aware of the direction this is going. The current legal system is so flawed that favoring powerful corporations will not be very difficult. The thing is: what would the world be without creators and their works, ideas and inventions. But what needs to be changed in the Polish Copyright Act to better protect the authors?
We need a whole series of changes. Undoubtedly, the approval system for remuneration tables for the collective management organizations, as it is completely non-operational in Poland. Such a body like the Copyright Commission, acting by the Minister of Culture and National Heritage, has - in principle - little to say, because it cannot impose any solution, while in other countries there are special courts that fix the rates where we are dealing with the mass use. As a result, we are facing a complete paralysis here and years of litigation, which makes the damage incurred by the authors even more unfair. In some European countries, there are also offices empowered to combat piracy, and they supervise the execution of a special procedure called the notice and take down procedure, i.e. the procedure of removing access to illegal content on the Internet. In Poland, unfortunately, effectuating the removal of access to a particular file does not eliminate the problem - the violation reporting system is extremely cumbersome and time-consuming, and ultimately it does not have powers at its disposal, as mentioned above, to impose an order on the service provider to take specific action against further violations of rights in regard to the same work. In most cases - despite reporting a violation - the very same work is still present on different websites. Why are films, music or photographic creations available on the Internet treated as public property, depriving their creators’ authorship and protection of their rights? It seems that plenty of factors influence this. Firstly, if we have a free access to something, we tend to think it is in the public domain. Secondly, spreading it in social media for a long time (until the first sentences are passed) has been treated as personal use, not being subject to the copyright rules. Thirdly, downloading anything from the Internet is so easy and fast that not many users wonder whether they download it from a legal source. In today’s state of social awareness of copyright, one cannot say either that anyone spreading someone else’s unsigned work is not held responsible for copyright infringement only because they supposed it was nobody’s work.
Technological trends and globalization of the economy as well as cultural exchanges, impose new - open – conditions for processes of creation and democratize the access to artistic output. How can a well-functioning legal system be built in Poland that will stimulate creative activity and yet, at the same time foster general participation in cultural life?
Again you have asked extremely difficult questions about which scholars and practitioners are racking their brains not only in Poland. Indeed, the democratization of the access to dissemination of one’s creative works is massive. The Internet does not require huge expenditure for us to make our work available to the general public. A creator is no longer so heavily dependent on a publisher or producer as it used to be. A young novice creator would like to have free access to as many creative works as possible, to be able to remix, paste them and combine them with their own creations but after some time they find themselves on the other side of the barricade and begin to notice that their works are made use of in the same manner – without their knowledge and permission. Their point of view gets changed then. Stimulation of creative activity along with education on where lies the borderline in terms of making use of someone else’s creative works should take place as early as in school, but as it is known it is very hard to achieve within the present educational system based on tests and schemes and strictly determined qualifications. I believe that your question aims at how to balance specified interests. Unfortunately, it needs also public funds. For example, the Union law has granted creators the right to royalties on library borrowings for a long time (Poland is only now implementing the relevant directive). The state which wants to support reading books should provide the society with free access to library collections. Advances in this respect should not, however, be at the expense of creators, therefore public funds must be found for payment of their dues – also as an expression of reading success. Nobody demands that a provider of for example electricity supply it to libraries for free and it should be similar as far as copyrighted works are concerned.
Intellectual property rights and the possibility of generating income from their output provide creators and artists with the freedom of creative activity as well as a means of support. Creative professions, subject to protection are developing better and faster. What has to be done so that creative activity will be respected in Poland, in the same way as all the other socially important business operations?
Of course, I have no prescription for such awareness evolution but it seems that thefts cannot be ignored only because it is 'only' a creative work and not a car for example. Disrespect to such issues leads to general non-compliance with rules and norms of social intercourse: law not used exists only on paper; law not executed ceases to perform the function of ordering our lives. The most corruptive situation is maintaining the state of legal fiction...

Traple Konarski Podrecki i Wspólnicy - Kancelaria Prawna www.traple.pl
Judyta Papp Ltd. www.judytapapp.com

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