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14 August 2017
Minister of justice's new rights
The legislature recently adopted changes that could be of major importance for entities that provide IT systems to the Polish courts and judicial authorities. According to the Act of July 12 2017 amending the Act on the Common Court System, the minister of justice will acquire the right to decide unilaterally whether judicial authorities can use software if an important state or justice interest requires an efficiency of performance or continuity of operation and an agreement with a copyright owner is troublesome.
The Act on Copyright and Related Rights provides a copyright regime for computer programs that is based on EU Directive 91/250/EC on the legal protection of computer programs and generally states that software is protected in the same way as literary works, but with some specific exceptions.
Under Polish law, a rights holder's economic rights may be transferred by succession through inheritance or by way of agreement, including a copyright assignment agreement. If specific conditions are met, employers acquire economic copyrights from their employees by law. In the case of computer programs, such rights belong to the employer from the moment of creation.
In principle, the copyright owner has an exclusive right to dispose of a work in all fields of use if not specified. The Act on Copyright and Related Rights provides exceptions to the exclusivity of rights – such as:
However, the limitations of copyrights are interpreted rather strictly and the Act on Copyright and Related Rights is generally considered to be favourable to authors. The protection of copyrights for computer programs is even stricter. Limitation of the exclusivity of rights is narrower, because it excludes some cases of permitted use, such as the right to use works for educational purposes or for the purposes of public safety or administrative, court or employment proceedings. However, new specific limitations will soon be implemented by the Act on the Common Court System.
The Act on the Common Court System gives the minister of justice the power to issue a decision granting the state treasury an ambiguously defined right concerning a computer program – namely, "a right resulting from the author's economic rights to this kind of work". The language of the act is vague and the legal nature of the minister's new right may be doubtful, but it seems that the minister's new entitlement should be considered as a kind of compulsory licence similar to the compulsory licence of patents for public security reasons.
The minister's new rights are as follows:
The Act on the Common Court System provides that the minister of justice must grant such rights and the remuneration due to the copyright owner.
The decision on remuneration is issued by the minister after consulting an external expert and, according to the Act on the Common Court System, should exhaust all potential claims by a software copyright owner to the treasury. The two decisions may be appealed to different courts. While the main decision granting such rights may be appealed to administrative courts, the decision on remuneration may be appealed to the common courts. Such a split of proceedings does not seem favourable to copyright owners. Another controversial aspect of the new legislation is that the act is silent if the two decisions are issued simultaneously. There is also no deadline for the minister to issue a remuneration decision after issuing a decision granting rights.
It is also argued that such compulsory licensing could be regarded as incompatible with EU law (eg, EU Directive 91/250/EC on the legal protection of computer programs). It is usually construed that Articles 5 and 6 of EU Directive 91/250/EC exclusively determine exceptions to the exclusive rights applicable to computer programs and that the exceptions listed in the EU InfoSoc Directive (2001/29/EC) – including the limitations of copyright for public security reasons or to ensure the performance or reporting of administrative, parliamentary or judicial proceedings – should not apply to the legal protection of computer programs. In other words, EU member states are arguably excluded from applying further exceptions or limitations to software copyright protection, even those defined in the EU InfoSoc Directive. Such an interpretation seems to be confirmed by Point 50 of the EU InfoSoc Directive's preamble.
The compulsory licence for computer programs introduced by the Act on the Common Court System is a unique solution, as compulsory copyright licences do not exist in Polish or EU law. In view of the issues outlined above, the act may have a serious impact on the IT market for judicial agencies. They are therefore recommended to monitor closely local jurisprudence regarding the implementation of the new legislation and possible upcoming doctrinal interpretations by the minister of justice's new rights.
For further information on this topic please contact Szymon Gogulski at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (firstname.lastname@example.org). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.
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