WORLD TRADE RESTRICTED IP/Q/POL/1 23 December 1998 ORGANIZATION (98-5159)

Council for Trade-Related Aspects Original: English of Rights

REVIEW OF LEGISLATION ON AND RELATED RIGHTS

POLAND1

The present document reproduces the questions put to the delegation of and the responses given in the review of legislation on copyright and related rights at the Council's meetings of 12 May 1998 and 16 July 1998.2

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I. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND THEIR MEMBER STATES

1. It is our understanding that the Polish Act on Copyright and Neighbouring Rights ("Act") grants rights to Polish performers, producers of phonograms and broadcasting organisations which are not granted to foreign performers, producers of phonograms and broadcasting organisations. If this is the case, please explain how the Act complies with Article 3 in conjunction with Articles 65.3 and 65.2 of the TRIPS Agreement.

The Polish Act on Copyright and Neighbouring Rights applies not only to a domestic subject- matter of neighbouring rights but also to a phonogram, artistic performance and programme whose protection is guaranteed by international conventions. This is connected with a solution adopted in Article 90 Section 4, Article 96 Section 2, and Article 99 Section 2 of the Act. The TRIPS Agreement is the agreement mentioned in the aforementioned Articles. As a result of reference of the Polish Act to the protection arising from international agreements, "foreign" phonograms, artistic performances and broadcasting organization programmes may be protected within the territory of Poland. Protection guaranteed by the TRIPS Agreement is based on the principle of national treatment, Article 3, pursuant to which each member state is obliged to grant to foreign entities treatment no less favourable than that granted to its own entities. In our opinion, it must be borne in mind that this principle, when referred to neighbouring rights, is of a relative nature, i.e. it refers, pursuant to Article 3, only to the rights specified in the TRIPS Agreement. In practice, it means that the obligation refers only to the rights specified in Article 14 of the TRIPS Agreement. Within that scope (excluding, however, retroactive protection of phonograms), the Polish Act provides for a level of protection specified for neighbouring rights. Filing a notification pursuant to Article 65.3 does not eliminate the obligation to apply the principle of national treatment: nevertheless it adjourns with respect to our country the application of most provisions of the

1 As regards laws and regulations relevant to the areas of copyright and related rights as notified by Poland under Article 63.2 of the Agreement, reference is made to documents IP/N/1/POL/1/Rev.1, and IP/N/1/POL/C/1 and 2. 2 The minutes of these meetings have been circulated in documents IP/C/M/18 and IP/C/M/19 respectively. IP/Q/POL/1 Page 2

Agreement, which means that it also adjourns the necessity to extend the retroactive protection of foreign phonograms.

2. Article 126 of the Act provides that it applies, among others, to phonograms which were made within 20 years preceding the entry into force of the Law. As a result, it would appear that pre-1974 recordings, which have not yet fallen into through the expiry of the term of protection, are not protected under the Act. If this is the case, please explain how Article 126 complies with Article 14.6 of the TRIPS Agreement in conjunction with Article 18 of the .

As it arises from Article 95 of the Polish Act on Copyright and Neighbouring Rights, the rights of the phonogram producer shall expire after the lapse of 50 years following the year in which a phonogram was made. The only exception to that rule is the protection of phonograms created before the Act came into force (i.e. 24 May 1994). Pursuant to Article 126 1 Item 3, this retroactive protection of phonograms was limited only to phonograms created or broadcast within the period of 20 years preceding the date when the Act came into force. Such a solution does not fulfil the requirements contemplated by Article 14.6 of the TRIPS Agreement. It should be emphasized, however, that Poland which is now in the period of transition from a centrally planned to a free market economy, and which adopts structural reforms of the intellectual property system and faces specific problems connected with the preparation and introduction of the legislation within that scope, exercised the right to adjourn the application of most provisions of TRIPS (e.g. Article 14.6). Hence, at present, it is not obliged to provide full protection to foreign entities within the scope specified in the TRIPS Agreement. It is, however, obvious that after the end of the adjournment period, Poland will introduce the applicable protection of phonograms within the scope required by the TRIPS Agreement.

3. Article 124.3 of the Act provides that "owners of computer programs created prior to this Act coming into force and protected under paragraph 1 above, may not be made responsible for the infringement of copyright prior to such date". Could the Government of Poland please clarify the meaning and scope of this provision?

Pursuant to Article 124 Section 3 of the Polish Act on Copyright and Neighbouring Rights, the owner of software created before the date when the Act came into force (i.e. 24 May 1994) and protected pursuant to Article 1 of the Act may not be made responsible for the infringement of copyright which occurred before that date. This is related to the sanctioning of the approval of the use of computer programs regardless of the manner in which its user acquired such computer programs. This regulation allows the owner of computer programs to use it to the same extent as it was used before. This provision, being a provision of a specific nature, is not subject to any broader interpretation. It does not entitle to any further use of computer programs, and in particular to the copying or distributing of such computer programs. Regulation contained in Article 75 fully applies to such computer programs, since Article 75 specifies permitted limits of use of that computer programme by its authorized user in accordance with its purpose. As it arises from the explanations presented above, the indicated regulation does not create any special rights in favour of entities covered by the scope of Article 124, Section 3. Indemnification and holding harmless for the infringement of copyright does not limit in any way relevant claims of the copyright owner to computer programs due to:

- breach of terms and conditions of the agreement;

- illegal act;

- breach of regulations of Act on Combating Unfair Competition.

4. Article 21 of the Act provides that "public radio and television broadcasting organizations shall be allowed to broadcast published works which are not feature films, feature series inclusive". How IP/Q/POL/1 Page 3

does this provision comply with Article 9 of the TRIPS Agreement in conjunction with Article 11bis of the Berne Convention which states that "authors of literary and artistic works shall enjoy the exclusive right of authorizing the broadcast of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images"?

Article 11bis Section 1 of the Berne Convention provides that authors shall be granted protection with respect to the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of sounds or images. However, according to Section 2 of that Article, member states are entitled to determine conditions for the exercise of that exclusive right. It is commonly assumed that this regulation allows to introduce, in the internal legislation of the member states of the Convention, limitations in exercising that right by means of statutory licences. These conditions may not in any way infringe the authors' moral rights or his/her right to receive equitable remuneration. Regardless of that, these particular conditions may refer only to the territory of a country which determined them. Article 21 of the Polish Act on Copyright and Neighbouring Rights fulfils all the requirements stated above. Therefore, it should be recognized that this Article corresponds with Article 9 of the TRIPS Agreement in connection with Article 11 bis of the Berne Convention.

5. Article 31 of the Act provides that "it shall be permitted to perform for the public the literary works, musical works, textual and musical works having been published if it is not connected with any material benefits". This concerns, among others, "…events accessible to the public…". Please clarify how this provision is interpreted, in particular against the background of Article 13 of the TRIPS Agreement which states that limitations or exceptions to the exclusive right shall be confined to certain special cases "which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder".

Provisions contained in Article 31 of the Act introduce an exception to exclusive rights of the author of a work, namely they limit the exclusive right to a public performance of a work. However, the form of use of the work permissible by the legislation should be construed (similarly to other limitations of exclusive economic rights of the author) taking into account the general rule contained in Article 35 of the Act. According to that rule "the permitted use must not infringe the normal use of the work or violate the rightful interests of the author". The content of Article 31 when combined with Article 35 fully complies with the regulation contained in Article 13 of the TRIPS Agreement.

[Follow-up question]

Could the Government of Poland provide some examples/cases – taken, for example, from Polish case law and/or the relevant drafting history – to illustrate the practical application of the exception from copyright protection, as contained in Article 31 in conjunction with Article 35 of the Polish Act on Copyright and Neighbouring Rights.

Article 31 in conjunction with Article 35 of the Polish Act on Copyright and Neighbouring Rights refers, for example, to such cases:

(1) Disco organized in a school by pupils.

(2) School celebrations.

(3) Religious pilgrimages.

(4) Performances in clubs.

6. Please explain whether and how the Polish copyright legislation implements Article 11 of the TRIPS Agreement with respect to cinematographic works. IP/Q/POL/1 Page 4

The Polish Act does not use the term "cinematographic work" but it creates a category of an audiovisual work which is a wider concept and includes cinematographic works. Article 17 in connection with Article 70, Section 1 of the Polish Act on Copyright and Neighbouring Rights grants the authors' economic rights to the producer of an audiovisual work who shall have an exclusive right to use and dispose of the work in the fields of exploitation mentioned in Article 50. Item 8 of Article 50 mentions lease of the work as a separate field of exploitation. Regulation contained in article 50 Item 8 is of a general nature and refers to all categories of works. This means that the Polish regulation conforms to the provision of Article 11 of the TRIPS Agreement.

7. Please also explain how the Polish copyright legislation protects anonymous and pseudonymous works.

In accordance with the provisions of the Act (Article 16), the author who possesses certain moral rights related to the work may decide to sign the work with his/her name or pseudonym or make it available to the public anonymously. Defining in this way the authors' moral rights, the Act does not differentiate the protection between works signed by name and works signed by a pseudonym or made available anonymously. The only difference arising from making available the work without specifying the author's name is that copyright held by such author is then exercised by the producer or publisher, and in the case that there is no producer or publisher by a relevant collective administration organization (Article 8, Section 3), and furthermore, that authors' economic rights expire after the lapse of 50 years following the first publication, and in the situation where the work was not published, following the date of its fixation, unless the name of the author was revealed before the end of that period (Article 36, Item 2 of the Act). Classification of these rights as the authors' moral rights causes that in the case of their infringement the author has right to claim protection of these rights before the court.

Pursuant to Article 7/8 the author whose moral rights have been threatened by actions taken by third parties may request such actions to be ceased. In the case of violation, one may demand that a person who infringed the rights undertakes actions which are necessary for the elimination of its consequences and, in particular, to make a public statement with an applicable form and content. If the infringement was culpable, the court may award to the author an applicable amount of money as a compensation for the damage incurred or – upon the request of the author – oblige the perpetrator to pay an applicable amount of money for a social cause as indicated by the author.

8. Article 14.2 of the TRIPS Agreement provides that producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. Please clarify whether and how the Act implements this obligation.

Provisions of Article 94, Section 2, Item 1 grant to producers of phonograms and videograms an exclusive right to dispose of and use the phonogram and videogram within the scope of reproduction by a specific technique. Hence, the Polish Act corresponds with the regulations of Article 14, Section 2 of the TRIPS Agreement.

II. QUESTIONS POSED BY JAPAN

1. Please explain whether and how the Copyright Law of Poland provides protection for works, phonograms and performances of other WTO Members, and please describe the provision in the Copyright Law of Poland which provides for the national treatment (NT) and most-favoured-nation treatment (MFN) as required by TRIPS Article 3, Article 4, and Article 9.1 incorporating Berne Article 5.1.

The Polish Act on Copyright and Neighbouring Rights grants protection to foreign entities (Members of the TRIPS Agreement) according to the principles specified in international agreements to IP/Q/POL/1 Page 5 which the Republic of Poland is a party. With regard to copyright, Article 5, Item 4 is a regulation referring to regulations of the conventions, whereas with regard to neighbouring rights (protection of performers, producers of phonograms and videograms and broadcasting organizations) – regulations of Article 90, Item 4, Article 96, Item 2 and Article 99, Item 2 of the Act on Copyright and Neighbouring Rights. Agreements relating to intellectual property are based on the principle of national treatment. This also refers to the TRIPS Agreement. However, this document introduces in Article 4 the principle of the "most-favoured-nation status" which has not been present in the previous international conventions concerned with intellectual property. Polish law fulfils the above-mentioned rules. For exceptions see below.

2. Please explain exceptions or exemptions for NT and MFN, if any, in the Copyright Law of Poland as permitted by Articles 3 and 4 of the TRIPS Agreement.

In our opinion, Article 51, Section 3 of the Polish Act on Copyright and Neighbouring Rights constitutes a legal basis for the formulation of an exception to the principle of the most-favoured-nation status. This regulation introduces an institution of the so-called international (ex-territorial) exhaustion of law, being an exception to the general rule of territorial scope of exhaustion of copyright which arises from Article 51, Sections 1 and 2. Article 51, Section 3 limits, however, the scope of international exhaustion to the area in which a free trade zone is located. Pursuant to international agreements concluded by Poland, this zone covers the territory of our country.

Poland has entered into a number of bilateral agreements on the establishment of such zones. The Agreement on the Association of 1991 also provides for an obligation to gradually create a free trade zone between Poland and the countries. Pursuant to Article XXIV GATT, free trade zones and customs unions are one of the exceptions to the principle of the most-favoured-nation status.

3. Please explain whether Article 1 of the Copyright Law of Poland, which provides for the protection of computer programs, includes programs in both source code and object code and please explain how the Copyright Law of Poland complies with Article 10.1 of the TRIPS Agreement.

The Polish Act on Copyright and Neighbouring Rights protects computer programs which constitute works in the understanding of Article 1, Section 1 of the aforementioned Act. Article 1 expresses a general principle. Additionally, the Act on Copyright and Neighbouring Rights contains specific regulations concerning the protection of computer programs. Specific regulations are contained in Chapter 7 of the Act – specific regulations concerning computer programs (Article 74–77). Article 74, Section 2 provides that protection granted to a computer program comprises all forms of its expression, including all forms of design, manufacture and user documentation. This regulation expressly indicates that the Act protects all forms of expression of the program (form of the program) regardless of the manner in which it is stored. Protection is granted to programs stored both in the form of a source code and output code. The Polish Act is based on an assumption that the form of a program does not affect the legal capacity of its author. The scope of the subject-matter of sentence 1 contained in Article 74, Section 2 of the Act on Copyright and Neighbouring Rights is broader than the scope of Article 10.1 of the TRIPS Agreement which refers only to two forms of storing the computer programs. Article 74.1 states precisely that computer programs are subject to protection just like literary works.

III. QUESTIONS POSED BY THE UNITED STATES

1. Please explain whether and how Polish law provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)). In particular, please explain how national IP/Q/POL/1 Page 6

treatment is afforded with respect to the distribution of blank tape and recording device levies under Article 20 of the Polish Law of Copyright and Neighbouring Rights.

The Polish Act on Copyright and Neighbouring Rights grants protection to foreign entities (members of the TRIPS Agreement) according to principles specified in international agreements to which the Republic of Poland is a party. With regard to copyright, Article 5, Item 4 is a regulation referring to regulations of the conventions, whereas with regard to neighbouring rights (protection of performers, producers of phonograms and videograms and broadcasting organizations) – regulations of Article 90, Item 4, Article 96, Item 2 and Article 99, Item 2 of the Act on Copyright and Neighbouring Rights. Agreements relating to intellectual property are based on the principle of national treatment. This also refers to the TRIPS Agreement. However, this document introduces in Article 4 the principle of the "most-favoured-nation status" which has not been present in the previous international conventions concerned with intellectual property. Polish law fulfils the above- mentioned rules.

2. Does Poland apply the "" to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.

Since the question posed is not sufficiently clear to us, please specify its scope more precisely.

3. Please explain whether and how Poland protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.

The Polish Law fulfils the requirements of Article 14.2 of the TRIPS Agreement. According to Article 94.2 of the Polish Law the "producer of a phonogram shall have the exclusive right to dispose of and use the phonogram within the scope of its reproduction by a specific technique". The expression "reproduction by a specific technique" which is used by the Polish regulation in this context shall mean any technique, including the reproduction in a digital form. Hence, in the case of a digital recording and introduction of the phonogram to the network for the purpose of its offering upon request, e.g. through subscription or interactive services, regulations contained in Article 94.2 of the Law on Copyright and Neighbouring Rights shall apply.

4. Please explain whether and how Poland provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.

The Polish Law of 1994 introduced a 50-year protection period for phonograms, which is counted from the date the given phonogram was produced. Simultaneously, the scope of retroactive protection of artistic performances and phonograms produced before the effective date of the Law was limited. Pursuant to Article 125, Section 1, Item 2 of the Law, artistic performances fixed earlier than 20 years before the effective date of the Law, i.e. before 23 May 1974, shall not enjoy the protection. Respective provisions concerning phonograms are contained in Article 126, Section 1, Item 3 of the Law. The Republic of Poland is aware of the fact that such regulations are contradictory to those of TRIPS Article 14.6 and that an amendment of the Polish Law is inevitable. Undoubtedly, after the lapse of the adjournment period, Poland will be obliged to provide "foreign" entities with protection whose level will be equal to that granted by the TRIPS Agreement. This is so because the TRIPS Agreement will constitute a basis for the protection in Poland of "foreign" artistic performances and phonograms fixed earlier than 20 years before the Polish Law on Copyright and Neighbouring Rights came into force. Meanwhile, as mentioned in Item 1, throughout the adjournment period Poland is released from the obligation to apply most provisions of the TRIPS Agreement, including Article 14.6 IP/Q/POL/1 Page 7

As regards the period of protection, the Polish Law does not provide for any limitations concerning retroactive protection. Article 124 of the Law:

"1. Provisions of this Act shall apply to the works:

1) established for the first time after it has come into force;

2) whose copyright has not expired under the provisions hitherto in force;

3) whose copyright has expired under the provisions hitherto in force and which under this Act shall continue to enjoy protection, except for the period between the expiry of protection under the previous Act and the date of this Act coming into force. This Act shall not infringe the ownership of copies of works disseminated prior to the day of its coming into force.

"2. The provision of paragraph 1, subparagraph 3 above shall apply to works of foreign citizens permanently residing abroad upon the condition of reciprocity."

5. Please confirm whether and how Polish law provides rental rights for computer programs and phonograms as required by TRIPS Articles 11 and 14.4.

The Polish Law of 1994 provides that authors (including authors of computer programs and audiovisual works) shall have the exclusive right to use works and dispose of them on all fields of exploitation. Article 50 of the Law, in which such fields of exploitation are enumerated, mentions under Item 8 the rental of copies of a work. This means that rental rights are granted to authors of all works, and not only authors of computer programs and cinematographic works, as provided in the TRIPS Agreement. Hence, it can be stated that with respect to the scope of protection discussed above, the Polish Law provides for protection which is reaching further than that provided by the TRIPS Agreement.

6. Please explain whether and how Chapter 3, Section 2 of Polish Law of Copyright and Neighbouring Rights regarding "Economic Rights" provides the rights of translation, adaptation, arrangement and alteration as required by Berne Articles 8, 12 and 14 (as incorporated by TRIPS Article 9.1).

Article 2, Section 1 of the Law on Copyright and Neighbouring Rights provides that a work derived from another author's work (derivative work), including in particular, translation, alteration and adaptation thereof, constitutes the subject-matter of copyright without prejudice to the rights of the original work. The author of such a derivative work shall be granted copyright to his work in accordance with regulations contained in Chapter 3, Section 2 of the Law. However, pursuant to Article 2.3 disposition and use of the derivative work shall be conditional upon the permission of the author of the original work, unless that author's economic rights to the original work have expired.

7. Article 24.1 of the Polish Law of Copyright and Neighbouring Rights permits the retransmission of radio and television broadcasts by cable systems to multiple residences and recipients so long as the retransmission is complete, simultaneous and without charge. Please explain how this complies with TRIPS Article 13 and Berne Article 11bis(2), as incorporated into TRIPS by Article 9.1.

The regulation contained in Article 24, Section 1 of the Law is not a licence for cable retransmission for commercial purposes. The case described in this Article refers only to the fact of receiving satellite programmes by an increased group of recipients (increased up to the statutory limit). Due to the fact that certain technical devices, which intensify the satellite signal (group IP/Q/POL/1 Page 8 antennas) and transmit the signal by cable to a strictly specified group of recipients residing in one multi-apartment building or in single family houses including up to 50 households, are used for this purpose, this situation constitutes a form of the permitted use for private purposes. On the other hand, regulations concerning permitted use are always construed in connection with Article 35 of the Law. This Article provides that permitted use must not violate the normal use of a work or infringe upon the rightful interests of the author. Since the technical terms and requirements concerning the quantity, which are indicated in Article 24, Section 1 in connection with Article 35, are fulfilled, Article 24, Section 1 is not contradictory to Article 13 of the TRIPS Agreement and Article 11bis, Section 2 of the Berne Convention (as incorporated by Article 9.1 of the TRIPS Agreement).

8. Article 28 of the Polish Law of Copyright and Neighbouring Rights provides an exception to the reproduction right for libraries for works "unavailable on the market." Article 29 permits reproduction of works in creating anthologies for the purpose of teaching and criticism, as well as a compulsory license to copy portions of works into a collection for "teaching and scientific" purposes. Please explain how these exceptions comply with TRIPS Article 13 and Berne Article 9(2), as incorporated into TRIPS by Article 9.1.

Provisions of the Polish Law referred to in the question that you posed comply with Article 13 of the TRIPS Agreement and Article 9 of the Berne Convention. Limitations related to the exclusive rights provided for in Articles 28 and 29 are not in opposition to the normal use of works and do not result in unjustified damage.

Permission, provided for in Article 28 of the Law, for making copies of works by libraries, archives and schools has been limited to include exceptional cases when the following conditions have to be fulfilled:

- pursuant to the Law single copies of works may be made;

- published copies must be unavailable on the market; and

- copies must be made for the purpose of protecting the collections of works.

The "right of quotation" regulated under Article 2, Section 1, and the permissibility to disseminate anthologies regulated under Article 2, Section 2, also comply with the Berne Convention (Articles 9 and 10).

In the case of dissemination of anthologies, the Polish Law guarantees the author the right to receive remuneration – Article 29, Section 3.

Article 35 gives a general indication how the described provisions should be construed. Pursuant to Article 35 the "permitted use may not violate the normal use of a work or infringe upon rightful interests of the author". This provision is a repetition of the principle adopted in Article 9.2 of the Berne Convention.

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