The legal definition of a work is contained in Article 1(1) of the Act of 4 February 1994 on Copyright and Related Rights (hereinafter: the Act). Within the meaning of this provision, a work protected by copyright is any manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and manner of expression.
Answers to the question How to protect copyright? can be found in the Act. In the light of the above-mentioned provision, the granting of copyright protection depends on the fulfilment of the following conditions. Firstly, the condition of creativity must be met, i.e. the object should be a manifestation of creative activity, secondly, the condition of individuality, and thirdly, the condition of establishing in any form.
It follows from the premise of creativity that the subject of protection may only be an object that is the result of human activity. Within the meaning of copyright law, this activity must be distinguished from other similar manifestations of creative activity in a way that proves its originality or uniqueness. Therefore, in order to recognize a specific result as a work, man must have a decisive influence on its creation by giving it creative features of an individual character.
Nevertheless, attention should be paid to the increasingly common use of computer programs and combining human work with artificial intelligence, which may lead to significant difficulties in identifying the actual author of the work. In the light of the applicable regulations, a work is an intangible asset that is the result of the author’s intellectual activity, so products generated by artificial intelligence do not constitute a work, which forces the need to adapt copyright law to completely new issues.
A work is subject to copyright from the moment it is established, even if it is in an unfinished form. The determination determines the existence of the work. A work that remains only in the mind of the creator does not create protection within the meaning of copyright law. However, the determination is the very possibility, the creation of conditions for the potential perception of the work by at least one recipient.
What is not protected by copyright?
Pursuant to Article 1(21) of the Act, discoveries, ideas, procedures, methods, principles of operation and mathematical concepts are outside the scope of copyright protection. Thus, copyright protection applies only to the expression of ideas, not to the ideas themselves.
The following products are also excluded from copyright protection:
1) normative acts or their official drafts;
2) official documents, materials, signs and symbols;
3) published patent or protection descriptions;
4) simple press releases.
How is a work created?
The creation of a work is a factual act. Protection under copyright law does not depend on completing any formalities, such as registering the work or paying a fee. The same applies to the protection of related rights. Protection arises automatically upon creation of the work (ex lege). In this respect, copyright differs significantly from other intellectual property rights.
Duration of economic rights
Copyright is governed by the principle of territoriality, meaning that each country has its own system of rules. However, international agreements and European legislation have harmonised these rules to a large extent. In Poland and the European Union, the general rule is that authors’ rights are protected for their lifetime and for 70 years after their death. Related rights protection lasts for 50 years after the publication or public performance of a work, film, or broadcast and 70 years in the case of phonograms or performances recorded on phonograms.
Creators’ rights
Copyright gives authors exclusive rights that allow them to control the use of their works and generate income. Authors and/or copyright holders can authorise or prohibit certain types of use of their works, such as reproduction and distribution, as well as communication and public performance. As well as copyright, the law creates ‘related’ rights to reward and/or encourage the creative efforts and investments of those who make creative works available to the public, such as musical and audiovisual performers, record producers, and radio and television broadcasters.
Copyright ensures that creators and other rights holders are adequately remunerated, while enabling the public to access creative works and allowing other creators to build on earlier works. Thus, the economic aspects of copyright are complex, reflecting trade-offs between the interests of creators, distributors, performers, and consumers, as well as short- and long-term effects.
Regardless of property rights, authors also enjoy moral rights. These protect the creator’s relationship with their work and cannot be waived or transferred. They include the right to be recognised as the author and the right to protect the integrity of the work. These rights can be enforced by the author even if copyright has been transferred to a third party.
Copyright infringement
It occurs whenever a protected work is used without the permission of the copyright holder and the use cannot be considered fair under any applicable exceptions or limitations to copyright law.
In today’s rapidly changing digital landscape, copyright infringement continues to pose a serious challenge to rights holders around the world. Digital piracy is widespread and affects not only creative industries, but also undermines the integrity of the legal distribution of intellectual property.
In the internet age, copyright infringement has become easier to commit on a massive scale, as demonstrated by the unauthorised sharing of files on large-scale peer-to-peer networks based on BitTorrent. The technology used to download copyright-protected content is irrelevant, as is whether the work was downloaded in full or in part. Downloading a work from the internet constitutes an act of reproduction. During the streaming process on the end user’s computer, no permanent copy or file is created. However, in a case concerning the sale of a multimedia player with pre-installed add-ons that helped users find copyright-infringing content online, the CJEU ruled that end users streaming such a multimedia player are not covered by copyright exceptions.
Admitted private use
The law establishes exceptions and limitations to strike a balance between copyright protection and competing interests, such as freedom of expression, communication and privacy. One such exception is the private use exception, which allows the creation of copies of copyrighted works for personal, non-commercial use only.
Permitted use applies to copyright-protected works and related rights. As with some other forms of permitted use, this exception only applies to works that have been made available to the public.
According to case law from the Court of Justice of the European Union (CJEU), the private copying exception applies only to users who have lawfully obtained a copy of a work (i.e. with the consent of, or under a licence from, the copyright holders).
How can you indicate that your work is protected?
Copyright protection is crucial for creators who want to prevent their work from being used without their consent.
Creators are entitled to copyright protection regardless of whether any formalities have been fulfilled (Article 1(4) of the Act). Due to the lack of a formal way of recording the creation of a work, many mechanisms have been developed to enable or facilitate the determination of the moment of creation and the creator of a work.
These include:
– depositing a copy of the work with a notary public;
– having a notary public draw up a report on the work’s inspection, which provides reliable confirmation of its creation date.
Copyright reservation, often referred to as a ‘copyright notice’, takes the form of the letter ‘C’ in a circle, accompanied by the phrase ‘Copyright by’ and an indication of the copyright holder and the year of publication. Alternatively, the phrase ‘All rights reserved’ can be used.
Other methods include registering works via online platforms and using digital security measures such as encryption and saving them on electronic media.
Registering the work in a register maintained by copyright management organisations and paying fees.
Adding a watermark to photographs or other graphics.
Monitoring the internet enables a quick response in the event of infringements.
Signing licence agreements that specify copyright and the terms of use of the work.
Marking works with a name, surname or pseudonym to confirm authorship.
Catalogue of claims to which authors are entitled:
The Act authorises an author whose economic copyright has been infringed to demand that the person who has infringed their rights:
1) to cease the infringement;
2) to remove the effects of the infringement;
3) Redress for the damage caused.
a) on general terms; or
b) payment of a sum of money corresponding to double the amount.
4) Return the benefits obtained.
2. In addition, the author may demand that an appropriate statement be published in the press once or multiple times, or that part or all of the court’s ruling in the present case be made public, in the manner and to the extent specified by the court.
3. At the infringing party’s request and with the entitled party’s consent, the court may order the infringing party to pay an appropriate sum of money to the entitled party if the infringement is not attributable to the infringing party and if the cessation of the infringement or removal of the effects of the infringement would cause disproportionate hardship to the infringing party.
4. When deciding on a lawful infringement, the court may, at the request of the relevant person, rule on the unlawfully produced items and the means and materials used to produce them. In particular, it may rule on their withdrawal from the market, award the relevant person due compensation, or order their destruction. When making a decision, the court takes into account the gravity of the infringement and the interests of third parties.
Precautionary measures, disclosure or surrender of evidence; request for information
In civil law cases concerning copyright and related rights that do not fall within the jurisdiction of other authorities, the court shall examine applications for:
1) precautionary measures to preserve evidence;
2) disclosure or surrender of evidence;
3) request for information.
Conclusion
Copyright protection and the answer to the question How to protect copyright? is extremely important because it gives creators control over their works and allows them to obtain financial benefits. Without adequate protection, copyright can be easily infringed, leading to financial loss and damage to reputation. It is therefore important that creators are aware of their rights and actively protect them.
By working with FGGH IP patent attorneys, you can rest assured that your work is properly secured and that you have the right protection strategy for your business.
Author:
Alicja Kicińska-Fujawa
alicja.fujawa@fgghip.com
