Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace z Prawa Własności Intelektualnej (ZNUJ PPWI) są kontynuacją serii Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace z Wynalazczości i Ochrony Własności Intelektualnej (ZNUJ PWiOWI), wydawanej od 1973 r.
Czasopismo jest kwartalnikiem. Od połowy 2008 r. jest wydawane przez Wolters Kluwer Polska SA i ukazuje się regularnie pod koniec ostatniego miesiąca danego kwartału. Na jego łamach są publikowane artykuły poświęcone problematyce prawa autorskiego i praw pokrewnych, prawa ochrony konkurencji oraz prawa informacyjnego – w aspekcie krajowym, a także międzynarodowym. Czasopismo jest dedykowane specjalistom z zakresu prawa własności intelektualnej, zarówno praktykom, jak i pracownikom naukowym.
Wolters Kluwer Sp. z o.o. to część międzynarodowego koncernu Wolters Kluwer, które jest z kolei jednym z największych (w skali globalnej) wydawnictw. To wiodąca firma w dostarczaniu publikacji specjalistycznych adresowanych między innymi do branży prawniczej, ekonomicznej, ochrony zdrowia, administracji publicznej i edukacji.
Table of contents
Daria Katarzyna Gęsicka
Ewa Laskowska, Grzegorz Mania
The requirement of a diligent search for the rights-holder as a central element of the institution of orphan works
A diligent search should be a flexible process where changing scientific knowledge and technological advancement are taken into consideration; a process in which the diligent search is adjusted to particular conditions. As a consequence, it might be presumed that standards of diligent search will be affected by technological and information technology developments. It might be reasonable to entrust collective societies with conducting a diligent search.
The functionality of three-dimensional trade marks in the Polish practice
Customers are generally interested in acquiring products with attractive shape features, either due to their usefulness or eye appeal. Such a product becomes a powerful instrument able to affect competition in the market. This fact triggers the need on the part of entrepreneurs to cover shapes by exclusive rights. Protection under design rights - though the most suitable one - soon becomes unsatisfactory due to its temporal restriction, especially in case of successful products. That is the reason why trade mark protection still remains the object of entrepreneurial interest. The subject matter of the present article is to focus on aspects of the Polish practice related to the protection of shapes as a trade mark.
Variety denomination as an impediment to trade mark registration
As a result of the reform of the EU trade mark law enacted in 2015, both the new Directive concerning trade marks (Directive 2015/2436/EU) and Regulation No. 207/2009 (as amended by Regulation No. 2015/2424) explicitly state prior variety denomination as an absolute ground for the refusal of trade mark registration. The aim of this article is to analyse those provisions, which exemplify an interesting novum in a broader historical and comparative law perspective, including the Polish law. This paper is a English - language summary of the cycle of Polish - language publications of the author, devoted to variety denomination.
Daria Katarzyna Gęsicka
Much ado about the levy schemes
Private copying and reprography levies have been on the target of the European Commission's on-going initiatives for quite some time now as well as the cause for quite a turmoil in the realm of copyrights and related rights. Like in the Shakespearian comedy, there are different vested interests at play and they need to be reconciled. However, unlike in the play, a mere rumour or an overheard declaration of love will not do the trick in this case. Since the vested interests, including collective management societies representing creative industry, manufacturers and importers of blank media as well as reprography operators and users who are unwilling to pay more, are at war, the grounds for harmony in the system, where right-holders receive justified remuneration and the users make use of works or the subjects of related rights within the scope of private use exception, have been shaken. The reason for the shake is not, however, the clash of interests, but the fact that the foundations on which the system of the levies was built in the 1960s are, to put it mildly, no longer as firm as they used to be. Hence, being laid on an insecure basis, the whole system has been widely impugned recently. Not only the private copying levy scheme based on blank media levies, prevailing in the EU, has been put into question; also, the alternative schemes adopted in Spain or Finland, are being fiercely discussed in the quest for Aristotle's aurea mediocritas. The aims of this paper are to review the private copying and reprography levy equation, as the variables have changed significantly since its formation in the 1960s, and to analyse the alternative schemes. The paper consists of three parts. Part I describes the background of the levies and discusses the changes and developments in the field of exploitation of works in order to justify the need for revision of the current schemes. Part II presents the place of the levies in the modern European copyright law; mostly, it depicts the concerns voiced by the Member States of the EU in a form of questions referred to the Court of Justice of the European Union. Part III sets forth solutions alternative to the current levy schemes by discussing their potential to reconcile the vested interests of the information society.
Cartographic work as a database after the Court of Justice judgment of 29 October 2015
There has long been a desire to define appropriate legal protection for interactive and digital works, mostly converging on the potential legal regimes for protection of databases, which break down to copyright and the sui generis right. This discussion mirrors the long-standing commentary on multimedia works in German and Polish literature, which causes a lot of confusion when it comes to a proper qualification. As it seems that the best possible choice in the case of interactive works would be database right protection, this paper will shed some light on the prerequisites of a definition of a database, which may make it difficult, if not even impossible, for digital maps to gain any sui generis protection. The recent Court of Justice judgment of 19 October 2015 helps put our findings into context.
Intellectual property crediting: a case study of Bulgarian experience
Intangibles are very important for corporate activity and overall development today. Therefore, it is crucial for their owners to be able to fund themselves based on their intellectual property. The last can function as credit collateral in different ways - on its own and/or based on its revenue, using the instruments of assignments or pledges, singularly or together with other assets. This instrument is also known in Bulgaria, the legislation of which explicitly recognises the non-possessory pledge of intellectual property since 2003 and regulates its filing, the requirements for it, its effect and date from which it can be opposed to third parties. Practice is also at hand and the issues subject to attention are its intensity, the variants of its realisation - once or more times for specific objects, singularly or together with other assets, the term and parties in the relations and the most active branches in these type of deals. Therefore, the value of intellectual property as credit collateral is recognised, and time and experience are only necessary to make the interested parties more confident about such deals and the deals themselves - more successful.
Ewa Laskowska, Grzegorz Mania
Copyright as a service: how does the development of the music business determine the shape of copyright?
The process and the development of new technologies have brought about several changes in the domestic (international and European) copyright legal system. Copyright itself from the beginning was a reflection of the possible ways of works exploitation. However, with the impetus of new business models it is starting to not answer to the more and more basic questions about the permitted and not allowed use of a work. The proposed paper we would like to present should introduce the topic of a (new) perspective of copyright law, which may (or may not) be considered in the event of a (European) discussion about future legislation in this area.
Recent legislative developments in the regulation of IGOs at the EU level: towards a system
Indications of geographical origin (IGOs) are part of unitary rights, the regulation of which is split between different European Union legal acts depending on a particular type of product. The extent of this regulation is different both regarding registration and protection requirements, depending on the fact whether IGOs refer to agricultural products and foodstuffs or not. Recent legislative developments regarding IGOs, especially in the case of IGOs in respect of wines and aromatised wines, may be considered as a further step towards a complete system of protection of IGOs as unitary rights. Yet, these legislative developments did not lead to the regulation of IGOs at the EU level based on common registration and protection criteria.
The influence of the European Union law on the Lithuanian Copyright Law
This article analyses the main features characteristic of the Lithuanian Copyright Law, the relationship of national legal regulations with the legislation of the European Union. Based on an analysis of relevant provisions related to subject matter, copyright ownership, economic rights, limitations of economic rights and enforcement of copyright and neighbouring rights, the existing issues of the implementation of the directives of the European Union are presented.
Intellectual property protection and reverse engineering of computer programs in the European Community and Bulgaria
This paper aims to investigate how the patent and copyright laws interact when it comes to the protection of computer programs, with a special focus on reverse engineering. The paper investigates the European law, also discussing this type of protection in Bulgaria, and the EU law applied in one of the Member States. Reverse engineering is the process of analysing a product and working backwards to discover how it works. Even if long-accepted, the practice in the manufacturing industries, when it comes to software, is still a controversial practice, consisting of actions that are often regarded as unlawful. The paper argues that considering the nature of computer programs to be intellectual products and fitting them into the existing legislative framework has the potential to create more problems in the markets rather than to successfully regulate the economic relations arising from the development and commercial use of the programs as a product, specifically when it comes to reverse engineering, which in its nature is aimed more at securing interoperability rather than creating another product with similar characteristics, to be offered in the market at a cheaper price.
The Bolar exemption - broad or narrow scope of safe harbour in European patent law?
One of statutory exemption provided by patent regulations in Europe is a safe harbour from patent infringement related to the use patented inventions for clinical studies and trials necessary to obtain mandatory regulatory marketing authorisation for a medical product to enter the market, known as the "Bolar exemption" or "regulatory exception". Having its roots in US law, regulatory exemption was introduced at the EU level though Directive 2001/83/EC3. Even it ensured the adoption of this new form of patent limitation in the EU countries, the scope of the exemption in the Member States is unclear and far from uniform. The recent national legislative changes and court decisions interpreting national Bolar-type provisions raise further questions in regards to material, personal and territorial scope of the exemption. This article analyses the current status quo of this exemption and tries to answer the question if the European patent law opts for a broad or narrow scope of safe harbour.
"Ab origine": the ninetieth anniversary of enacting the first Polish Copyright Act
The 90th anniversary of enacting the first Polish Copyright Act of 29 March 1926 provides an occasion to describe the evolution and changes that have already been introduced or are to be introduced to the Polish copyright regulations and opens up an opportunity to make an attempt to evaluate them. The jubilee coincides with the effective date of the last part of the articles of the amendment of 2015.
Intellectual property and private international law: high time for a dedicated EU Rome IP Regulation?
The current EU framework of conflict-of-law rules dedicated to Intellectual Property is not satisfactory. Sources are dispersed through different legal acts, either EU legal instruments, such as the Rome I or Rome II Regulations, or national codifications of private international law, such as Chapter 10 of the Polish Private International Law of 2011. They can be regarded as highly technical and complex, even for experts in the field of IP or PIL. The relationships between these acts and instruments are not always clear. Moreover, the main problems were not solved by the recent controversial and incoherent the Court of Justice (CoJ) judgments. The adoption of a dedicated Rome IP Regulation focused on the conflict-of-law issues is therefore highly recommended. This article provides some recommendations on the expected content of such a regulation, with particular focus on the infringements of IP rights.
Preliminary rulings of the Court of Justice of the European Union concerning unregistered Community designs
The procedure of Art. 267(1) of the Treaty on the Functioning of the European Union is the unique way to interpret European Union law. Preliminary rulings based on the Art. 267(1) TFEU given by the Court of Justice of the European Union enable a uniform application of the European Union legal acts. In the matter of unregistered Community designs protected under Regulation No. 6/2002 this procedure is very helpful. Actually there are only two preliminary rulings that were given in cases concerning unregistered Community designs. They are important not only for the application of the provisions concerning unregistered Community designs but also registered Community designs. Preliminary rulings still do not give the answer to all questions that enable full and uniform application of the provisions concerning unregistered Community designs. Nevertheless, they facilitate using them.
Geo-blocking - permitted under European Law?
Geo-blocking is widely used today as a technical means to segment markets by territorial restrictions or limit access to information to a national territory. The objective is to control marketing of copyrighted works, but also to discriminate among consumers in e-commerce. If this technical measure is accompanied by pertinent contractual restrictions, the question arises if and to what extent this is contrary to European law, especially the principles of free movement of goods and services as well as competition law. The leading CJEU case on this question is the Murphy case decided in 2011. This article analyses European case law to draw conclusions on the extent that geo-blocking may be permitted, and criteria are developed in light of justified purposes to find a balance between the interests of rightholders and the development of the internal market. Finally, the application of the TFEU is compared to other legal measures.
Current trends in the development of copyright from the viewpoint of the European Commission, taking account of the needs of the phonographic industry
Copyright and intellectual property in general have become the focus of the new European Commission (hereinafter referred to as the EC), which issued the communication entitled "A Digital Single Market Strategy for Europe" (hereinafter referred to as the DSMS)to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions in May 2015. This document also includes intentions to change copyright legislation; the European Union thus expressed its interest in dealing with copyright more comprehensively and coherently after a long time. Changes in the area of copyright, telecommunications, e-commerce and other areas are necessary to ensure the functioning of the European digital single market. Again, there is an online environment "in play", where the legislation is lagging behind technological development, to put it mildly. Therefore, in this article I would like to analyse the respective areas of copyright where we expect changes soon in the form of legislative proposals, especially from the viewpoint of the phonographic (music) industry and its needs. In the second part of the text, I would also like to evaluate the most important of the Court of Justice of the European Union (hereinafter also referred to as the CJEU) decisions concerning topics related to Internet service providers (hereinafter referred to as ISPs) and their liability for any unauthorised use of content protected by copyright. For Internet users, the relevant CJEU decisions are at least as important as forthcoming legislation, since they present a source of the EU law.