Author: ts_admin

Legal status before 1 July 2015

So far, a third party infringing an author’s copyrights was required to pay damages. In the case of culpable use of copyrights, such damages amounted to three times the fees payable to the Author. In the case of faultless infringement of copyright, the damages amounted to twice the fees payable to the Author (art. 79 section 1 point 3 of the Act on Copyright and Related Rights).

Damages in the amount of three times the fees payable to the Author are unconstitutional.

However, on 23 June 2015, the Constitutional Court ruled that the right to demand damages in the amount of three times the fees payable to the Author, in the case of culpable violation of copyright (art. 79 section 1 point 3 letter b of the Act on Copyright and Related Rights), was inconsistent with the Constitution of the Republic of Poland. The Court ruled that authors were no longer the weaker party in dealings with third parties mainly due to the strongly institutional nature of copyright protection – the operation of associations and organisations involved in collective management of copyrights, such as ZAiKS. The Constitutional Court stated, at the same time, that the rights currently available to the Author whose copyrights have been intentionally infringed upon, against the infringing third party, are too excessive.

Consequences of the Ruling of the Constitutional Court

On 1 July 2015, the challenged provision ceased to be effective. Instead of demanding damages in the amount of three times the fees payable to the Author, in the case of culpable violation of copyright, the Author is entitled to claim damages on general principles, i.e. compensation for damages and lost profits.

What is more, any rulings made on the basis of the contested provision may be now challenged and authors may be awarded lower damages – through the institution of an application for revision.

Nevertheless, the Constitutional Court did not challenge damages for unintentional infringement of copyright in the amount of twice the fees payable to the Author. This gives rise to the conclusion that the infringing party should seek to obtain a ruling on the culpable infringement of copyright by such party, because in this case, damages will be lower.

In my opinion, this law needs to be amended as soon as possible due to the twofold interpretation of copyright violation. This interpretation is completely illogical since culpable infringement gives rise to lower damages than unintentional infringement.

The impact of the ruling of the Constitutional Court on the copyright market.

In my opinion, this ruling of the Constitutional Court should be regarded as revolutionary! It alters, in a significant manner, the balance of power between owners of copyrights and third parties violating the same. Copyright protection has been significantly reduced.

This ruling will also contribute to a more thorough discussion on the awareness of copyright infringement. In addition, it will further enhance the role of institutions involved in collective management of copyrights.

Possibility to exclude contractors from public tendering provided for in the draft Public Procurement Law

During the perusal of proposals included in the draft Public Procurement Law, my attention was drawn to three controversial provisions. They relate to obligatory circumstances requiring the Contracting Authority to exclude contractors from public procurement proceedings. These circumstances are specified in article 88 of the draft law, which constitutes the implementation of the Directive of 26 February 2014. In my opinion, the provision poses a threat to Contractors while offering the Contracting Party the opportunity to exclude Contractors in an easy and completely arbitrary manner.

The three proposals are:

Breach of obligations

The Contracting Authority may exclude Contractors who have breached the provisions of labour law, environmental protection law and the social security legislation.

The Contracting Authority has the power to decide on the satisfactory evidence of such infringements. What is more – we do not know how such infringement qualifies the Contractor for exclusion: will a lawsuit initiated against the Contractor by its employee or a negative administrative decision issued against the Contractor suffice to exclude it from the tendering procedure?

Agreement distorting competition

The Contracting Authority may exclude Contractors who have entered into an agreement aimed at distorting competition between contractors in the public tendering.

The proposed provisions stipulate that the fact of concluding such an agreement may be confirmed by the Contracting Authority itself based on reliable evidence. This clearly indicates that the Contracting Authority will be able to exercise complete freedom in this regard. We do not know what type of evidence qualifies as reliable for the arbitrary confirmation by the Contracting Authority of the fact of conclusion of such an agreement, and how such evidence may be contested – perhaps only in appeal proceedings?

Conflict of interests of the Contractor

Any Contractor subject to a conflict of interest should be excluded from the public procurement proceedings, provided that the conflict may not be effectively removed by less intrusive means.

In this proposal, concerns are raised by the term of conflict of interest. There is no point of reference here: what type of interest does such conflict apply to? In addition, we do not know the scope of the conflict. The Contracting Authority is to make an independent decision on the existence of the conflict of interest. At the same time, it will be authorised to decide if the conflict can be removed by less intrusive means (which have not been defined either). Such proposals will give rise to arbitrary settlements.

We do not need more conflicts between the parties

Due to the doubts described in this publication, I sincerely hope that the proposed regulations will be excluded from the public procurement law. By conferring such authorities to Contracting Parties, the principles of awarding public contracts may become seriously distorted. There may be cases where the Contracting Authority will decide on the award of the public contract based on completely biased and non-substantive arguments. Adoption of such proposals in the public procurement law would give rise to even more conflicts between Contractors and Contracting Parties.

The Constitutional Court changed the rules of copyright protection