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WTO Documents Online WORLD TRADE RESTRICTED IP/Q/POL/1 23 December 1998 ORGANIZATION (98-5159) Council for Trade-Related Aspects Original: English of Intellectual Property Rights REVIEW OF LEGISLATION ON COPYRIGHT AND RELATED RIGHTS POLAND1 The present document reproduces the questions put to the delegation of Poland 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 _______________ 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 public domain 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 Berne Convention. 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.
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