Copyright infringement and damages

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Copyrights are divided into personal rights and property rights of the creator. The Act of February 4, 1994 on copyright and related rights stipulates that each author has the exclusive right to use and dispose of the work, and that he is entitled to remuneration for the use of the work. A work that has a certain importance is protected under the above Act. It must therefore have individual characteristics. Under the EU directive, Member States are required to enforce intellectual property rights and adjudicate on the payment of compensation not only for infringement of copyright, but also for moral damage to the creator.

In Poland, compensation for copyright infringement may be both compensation for harm in criminal proceedings and compensation in civil proceedings. The damages resulting from the breach can be assessed on general terms or as a lump sum. The judgments of the Court of Justice of the European Union confirm this thesis.

Copyright Infringement - Item

The subject of copyright is those intellectual goods that are not simultaneously classified as things under the property law. Thus, copyrights include e.g.

  • intellectual (intangible) goods as a result of creativity,

  • inventive activity (utility models, industrial designs, inventive designs, trademarks).

What is copyrighted?

Doubts about what is subject to copyright protection and what should not be freely reproduced if the law does not allow it, arise from the intangible nature of copyright. It is difficult to clearly classify some works as objects protected by this law. The obvious, beyond doubt include:

  • piece (artistic performance, scientific and critical editions, phonograms, videograms),

  • related rights, the so-called neighboring (right to record programs, right to first editions).

In copyright law, there are works that are in some way related to others. These include, for example:

  • derivative works - they are a separate work as a development of someone else's work (e.g. translations, adaptations),

  • works inspired - are works only inspired by another work (e.g. a parody),

  • collections of works - databases, anthologies,

  • collective works - dictionaries, periodicals.

The process of settling what is subject to copyright

In litigation cases regarding the determination of infringement of copyright, an expert examines the so-called statistical one-off. Then it answers the question - did the elements of the structure of a given work exist before and is it statistically probable that such an element will be created in the future?

Exclusions - what is not the subject of copyright

As already said above, it is sometimes difficult to distinguish the form of a copyright thing. After its material processing, intangible intellectual property is subject to property law and other sections of the Civil Code, and not to the Act on the Protection of Copyright and Related Rights. It does not change the fact that a double interest of the creator appears then, and with it the possibility of claiming damages for infringement of copyright in various fields - on the basis of various provisions. There is a double interest in:

  • personal interest (bond with the work),

  • property interest (the possibility of profit by disposing of the work).

Hence the division of copyright into personal and property copyrights.

Compensation for infringement of copyright is possible in the event of reprehensible action by a third party on the personal rights of the creator under the Penal Code and on the property interest thanks to the Civil Code.

According to the act on copyright and related rights, they are not subject to copyright:

  • normative acts and their projects,

  • official documents, materials, signs, symbols,

  • published patents and protection descriptions,

  • simple press releases.

Special copyright regulations

Please note that there are also other legal regulations that are more specific and specific to specific cases. Copyright protection also includes:

  • audiovisual works,

  • computer software,

  • scientific works and cartography,

  • architectural and utility works,

  • advertising and topographic works.

Often, enabling the use of the above-mentioned works requires the purchase of a license. It is possible, however, that they will be made available under fair use. Each time before using a specific work, read the content of the license and find out what possibilities are offered by the creator of the exploitation of the work - this will protect the user from being exposed to the claim for compensation for infringement of the author's copyrights.

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Copyright infringement and their content

As mentioned above, copyrights take the form of tangible and intangible (personal) rights. Due to this division, the claim for compensation for the violation of individual rights and other legal institutions will be different.

Proprietary copyrights

Copyright is transferable, inheritable, and expires 70 years after the author's death.

A characteristic feature of copyright is its specification, which manifests itself in fragmentation. There are civil law claims in the form of an injunction and compensation.

Due to infringement of copyright, the author may demand:

  • non-infringement,

  • complete the activities necessary to remove the effects of the breach and submit an appropriate statement,

  • payment as compensation for the harm suffered, the appropriate amount or payment of the amount for the indicated social purpose,

  • compensation for damage,

  • release of obtained benefits.

Additionally, the creator may require:

  • a single or multiple announcement in the press of a specific statement from a person who infringed its copyrights,

  • pay an appropriate amount of money to the Creative Promotion Fund.

Author's moral rights

This right is inalienable, non-inheritable and has no time limit. It protects the creator's bond with the work also after its death. Then, copyrights transform into the goods of other entities. They are protected by the actions of living people.

The author's unlimited in time and non-waiverable bond with the work gives the right to:

  • authorship,

  • marking the work with the name and surname / pseudonym or sharing it anonymously,

  • the content of the work is inviolable (not to be changed),

  • fair use,

  • decide on the first release.

Attention!

Violation of personal rights can trigger criminal liability as it constitutes a criminal offense.

The creator's claims for infringement of moral rights are mainly failure to act. The image, the secret of correspondence and the secret of the source used in the work are protected on similar principles.

The amount of compensation for copyright infringement

The court decides whether there has been an infringement of copyright and may decide, at the creator's request, to withdraw unlawfully produced funds from the market. When adopting its judgment, the court takes into account the gravity of the infringement.

Attention!

Compensation may be calculated on general terms or on the basis of calculating twice the salary

It is possible to claim a double payment of the fee for the license fee, which was confirmed by the judgment of the Court of Justice of the European Union in case c-367/15 concerning the Oławska Cable Television Association against the Polish Filmmakers Association in Warsaw. The Tribunal also confirmed the position that compensation for copyright infringement can be calculated in two ways (on general principles or on the above-mentioned principle - ruling in case c-99/15 Christian Liffers v Producciones Mandarina SL).

Therefore, you can directly invoke the provisions of the Civil Code regarding liability for damage. However, the amount of the damage will have to be proven.

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