📋Contents
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so what is fair use.
To begin, let's establish what this so-called permitted use actually is. Although the term itself, from a linguistic perspective, indicates that we are dealing with an institution that creates the possibility of using something, it is necessary to clarify what specific rights make up its entirety.
Permitted use is an institution provided for in the Copyright and Related Rights Act (hereinafter the Copyright Act), which creates the possibility of using third-party works protected by economic rights (1) without the consent of the rights holder and (2) without remuneration (as a rule). It is therefore a right (the word "entitlement" was deliberately not used, as explained in the latter part) to legally use a work to which someone else holds rights, without needing to obtain their consent, and also free of charge, while simultaneously fulfilling certain obligations.
To apply fair use…
…we must deal with a work. This is a concept with the character of a legal definition, resulting from Article 1 of the Copyright Act. Accordingly, the first paragraph of the above states: "the subject of copyright is any manifestation of creative activity of an individual character, fixed in any form, regardless of value, purpose and method of expression (a work)". Therefore, distinguishing the individual conditions that a given work must meet
to be recognised as a work, and thus also covered by copyright protection, we should indicate:
- Manifestation of creative activity;
- The individual nature of the work;
- Establishing the work in any form;
- *Additionally, it is assumed, which results from the system of regulations, that the work must be created by a human being.
What is also important, the value, purpose and method of expression are not important. The above should apply to every work. Generally speaking, anything can become a work. Art. 1 section 2 Pr.Aut. it contains only an exemplary list of song types. Although this catalog specifies the most characteristic and common categories, the legislator deliberately left it open. This means that if the created work is not included in the calculation under Art. 1 section 2, but at the same time meets the conditions arising from section 1, it will be considered a work and, consequently, covered by copyright protection.
Example 1:
A work will be a short story written by a 6-year-old on a piece of paper, provided that it is creative and has an individual character.
Example 2: As a rule, a work will not be a square drawn on the highest quality canvas by a famous artist. Such a square does not meet the statutory requirements - it lacks any signs of creativity.
The above considerations are only of a general nature and do not present the issue exhaustively. The Act contains various exclusions (Article 4 of the Law) or directives as to what cannot be considered a work (Article 1(2)
1 Pr.Aut), as well as other types of works (dependent work/arrangement). However, this article focuses on what fair use is and what it looks like, so it would be pointless to analyze the issue of the work itself too extensively. Perhaps more about this another time…
What are the creator's rights?
Once it has been established that a given work constitutes a work within the meaning of Copyright Law, it is necessary to briefly explain what rights the author is entitled to in order to determine the possible scope of "interference" with it under the principle of fair use. It should be noted here that, as a general rule, copyright arises for the author. However, the Act provides for exceptions to this rule, in which case it arises originally or for the benefit of another entity. In addition, there is always the possibility of transferring copyright. In connection with the above, copyright may be held by various entities. For the purposes of this article, the term "author" encompasses all these entities – not only the person who created the work, but also other rights holders, regardless of the basis.
The exclusive copyrights vested in the author are of a dual nature. Firstly, there are economic rights, and secondly, there are moral rights.
Copyrights
Copyrights are established by Art. 17 of the Authorized Law, which states that: "unless the Act provides otherwise, the author has the exclusive right to use the work and dispose of it in all fields of exploitation and to receive remuneration for the use of the work." Without going into unnecessary details, it should be explained that property rights protect the economic interests of the creator and ensure the possibility of deriving material benefits from the created works. It is this category of rights that is subject to limitation on the basis of fair use - after all, using the work on this basis creates an obligation on the creator's part to limit the exercise of his rights towards the "permitted user".
Personal copyrights
Personal copyrights have their statutory basis in Art. 16 of the Authorized Law, according to which: "unless the Act provides otherwise, moral rights protect the author's bond with the work, which is unlimited in time and cannot be waived or transferred, and in particular the right to: 1) authorship of the work; 2) mark the work with your name or nickname or share it anonymously; 3) inviolability of the content and form of the work and its reliable use; 4) decide on the first disclosure of the work to the public; 5) supervision over the use of the work. Therefore, moral rights have a non-economic nature, although they may also indirectly affect the material sphere. An example is a situation where the musician's right to the first publication of the work is not respected, which will result in failure to obtain the expected financial benefits. Above all, they protect the bond of the creator (creator
stricto sensu, and not other authorised entities) with the work. This category of copyright is no less important in the context of fair use – after all, respecting it is one of the duties that enable the use of this institution.
As can be seen, there is therefore quite a clear separation between the sphere of rights that empowers the creator to obtain material benefits from the work created and that which protects their connection with the work and allows for respect for the creator's contribution to the creation of the work.
Ratio legis The two are different, so they need to be treated slightly differently. The difference can also be quite well illustrated by their English names – "economic rights" and "moral rights" respectively – so on the one hand, economics, and on the other, morality.
Fair dealing primarily relates to the limitation of the creator's economic rights, but its application requires respect for personal rights, more on which in the following paragraphs.
Fair use – taxonomy, grounds and classification
In the Polish Act on Copyright and Related Rights, provisions on fair use are found primarily in Art. 23-35
9Individual articles stipulate specific types of permitted use, as it has its enumerated forms. And although some of them are described very broadly and many things can be "tucked under" them, it can be said that the Polish act creates a closed catalogue of types of permitted use.
Permitted use can be divided primarily into two kinds. We are talking here about personal and public permitted use. The former is based on Article 23 of the Copyright Act, and the latter is a collective term for the remaining forms. The criterion for differentiation is the purpose of using the work – private, i.e., for one's own use and that of one's close circle, or public, i.e., aimed at non-private use (for example, permitted use for educational/school purposes, library use, reprinting, etc.).
Another classification, which is neither exhaustive nor binding, but primarily organisational, is the one proposed by Prof. Ryszard Markiewicz in his publication entitled "Illustrated Copyright Law" – in Chapter 7.1, on page 321. This scheme divides the forms of permitted use according to their purpose:
- "Access to works (culture and information)
- Personal use, for disabled people, orphan works, for administrative and judicial proceedings
- Creativity and freedom of expression
- Quotation, parody, pastiche, caricature, law of panorama, works in encyclopedias and atlases, ceremonies and celebrations
- Scientific and teaching purposes
- Illustration of the transmitted content, scientific research, authorizations for libraries, extracts and anthologies
- Television, radio, press
- Reprinting, recording works for radio and TV purposes, collective radio and television reception, public reception, quoting works in programs, quoting speeches
- Computer Networks
- Temporary reproduction of a work, reprint on the Internet, online library, online teaching or research purposes
- Other
- "Exhibiting a work of art, promotion and advertising, presentation and repair of equipment, renovation of a building"
The above therefore constitutes the aforementioned enumerative catalogue of forms of permitted use functioning within Polish copyright law. Somewhat confusing, but useful, may be the division into private and public permitted use – after all, the former has only one designation, and all other forms of permitted use fall into the latter group, but this differentiation is fully justified due to the differences between them.
Each form of permitted use is therefore different, yet at the same time all have common elements. It is possible, and even purposeful and crucial, to preface the conditions that apply to each of them. These conditions are:
- Using the work under a statutory exception (one of the forms of fair use);
- Prior dissemination of the work being used (respecting the creator's right to make it available for the first time);
- Respect for the author's personal rights (Article 34 of the Automotive Law);
- Use of the work in accordance with Art. 35 Pr.Aut., so:
- Without prejudice to the normal use of the work,
- Without harming the legitimate interests of the creator.
As can be seen, the conditions for using a work under the principle of permitted use are both positive and negative. The positive ones are those that indicate what needs to be done to be able to use the work, while the negative ones are those that define what cannot be done at the same time. In this respect, the most important is indeed Article 35 of the Copyright Act, which lays down the negative conditions, but more on that in a moment.
The first two conditions, namely use within a statutory exception and prior dissemination of the work, do not appear to raise significant doubts. To invoke permitted use, one must rely on a specific example of it, as prescribed in the Act (for example, the right of quotation described in Art. 29 of the Copyright Act). However, it must be remembered that the conditions described in that provision must be met simultaneously on each occasion.
Example:
Art. 29 Auto Law states: "You may quote fragments of widespread works and widespread works of art and works in works constituting a self-contained whole."
Therefore, if you want to invoke the right to quote from Art. 29 Pr.Aut. we have to:
- Create a work within the meaning of copyright provisions that constitutes a self-contained whole,
- In this piece I quote:
- Fragment of a widely distributed work or;
- A piece of art, photography or other small work in its entirety.
- Justify this with one of the statutory criteria, namely:
- Critical or scientific analysis or
- The laws of genre of creativity.
And invariably fulfill the remaining conditions described above in points 2-4.
The work – in accordance with premise number 2 – must be disseminated. This, like the "work" itself, is a concept of a legal definition, so it leaves no room for interpretation. As per Art. 6 point 3 of the Copyright Act, "a disseminated work is a work that, with the creator's permission, has been made publicly available in any way." This means that if we are merely using a work that has been legally made publicly available in accordance with the creator's wishes, we fulfil this premise. In practice, we almost always deal with such works, so it should not keep you up at night!
As for premise number 3, namely respect for the creator's personal rights – this is a kind of separation of interference with economic rights from non-interference with personal rights, something that was briefly mentioned earlier.
Art. 34 of the Copyright Act: "Works may be used within the limits of lawful use"
provided that the name and surname of the author and the source are mentionedThe indication of the creator and source should take into account existing possibilities. The creator is not entitled to remuneration, unless otherwise provided by law.
The legislator thus clearly indicates that, despite the creator's obligation to tolerate certain infringements of their exclusive rights, the user is not released from respecting their personal rights – in particular, in this case, the right to be attributed authorship of the work. Therefore, it should be remembered that any form of permitted use may only be availed of subject to the indication of authorship and the source of origin.
Example:
Above, by right of quotation, a diagram from the book by prof. Ryszard Markiewicz. Fulfilling the obligation under Art. 34 Pr.Aut. was:
- Providing the author's name and surname;
- Providing the source, meaning the title of the book, chapter, and even page number as accurately as possible.
Furthermore, in accordance with the wording of the provision, the attribution of the creator and source should take into account existing possibilities. This means that if you wish to include a photograph of your own artwork, for example, by Banksy, in a work you are creating, you should write: "Banksy, own photograph". Taking into account existing possibilities, it is possible to provide Banksy's name, as, according to the artist's will, this information remains unknown. Interpreting the above provision literally, the impossibility of providing the name would block the reliance on permitted use, which is not purposeful. Therefore, providing his pseudonym will be sufficient. The same applies to anonymous works – one of the artist's moral rights is to publish an anonymous work, intentionally wishing to conceal their identity. In such a case, knowing that the work is anonymous, one should inform about it ("creator unknown" / "anonymous work").
On the other hand, this same provision, which sometimes exempts us from the obligation to search at all costs for the creator's name, also imposes certain obligations on us. For example, if the author of a photograph we found in Google Images is not provided, but at the same time, with little effort, we are able to find it (for example, by visiting another website), then it is our obligation to provide that name – existing possibilities create an opportunity to find this data relatively quickly and easily. Therefore, one should always realistically assess how possible it is to provide the creator's name.
Article 35 Auto Law – limiting premises
Seemingly brief and unassuming, Article 35 of the Copyright Act is crucial for the possibility of using permitted uses and causes the most interpretational problems. It reads: "permitted use may not infringe the normal use of the work or be contrary to the legitimate interests of the author." These concepts are intentionally vague and are rooted in international legal culture.
Permitted use and similar institutions (e.g.
fair use In the USA) share certain common elements that allow for a more or less similar treatment of national copyright laws in individual countries. After all, in today's world, an era when we can access almost any piece of music that comes to mind in a few seconds via a browser, disputes in this area can be interstate in nature. It is therefore good that at least the main assumptions of individual copyright systems have similar foundations.
In European law, Directive 2001/29/EC, and more specifically its Article 5(5), establishes an analogous solution. It defines a three-stage test, which is precisely that element of international legal culture that binds individual national copyright systems together. This three-stage test is:
- Use within the framework of an exceptional case specified in the Act,
- Not violating the normal use of the work,
- Not causing unjustified damage to the interests of the entitled person (author).
Since this provision stems from an EU directive, it required implementation into national law. As one might readily guess, this was done by virtue of Article 35 of the Copyright Act. However, the question arises as to whether this implementation was flawed due to the absence of the first condition being explicitly mentioned in Article 35. The answer to this question follows from the very scheme of permitted use in the Polish act – after all, there is no alternative to using it other than within the scope of a specific exceptional case defined by statute (the individual categories/types of permitted use described above, the exhaustive list in Article 23 of the Copyright Act et seq.). It should also be noted here that due to the fact that the grounds for permitted use are described in the EU directive, Polish courts are bound by the interpretation of the implemented provisions by the CJEU, given the principle of uniform application of law in Member States and the principle of sincere cooperation. It is worth remembering this in all sorts of disputes based precisely on the provisions for permitted use – CJEU case law can be very helpful.
Finally, we should consider what lies behind the enigmatic conditions.
Normal use of a work, in short, means not being contrary to the normal exploitation of the work. This concept – in line with the CJEU's guidelines – should be interpreted narrowly. The concept itself is intentionally vague and is assessed on a case-by-case basis – well, here the role of a lawyer comes into play! Two quotes can additionally help in understanding the essence of this concept:
"Normality should be examined in the context of socially accepted interests related to access to information, freedom of creation, freedom of expression, freedom of economic activity – these interests also define the boundaries of 'normal' use of a work subject to exclusive rights" –
"Illustrated copyright", chapter 7.1, page 322 - prof. Ryszard Markiewicz
“The normal use of newspaper articles is that the newspapers in which these articles are published are sold and generate income. The economic benefits that can be obtained in this way should accrue to the copyright holders. The normal use of the work is impaired if the impact on the press sales market is felt and newspaper sales decline.
Opinion of Advocate General V. Trstenjak in the Infopaq case.
The author's interest is expressed as the rights to the work and everything related to them. We are talking here about interests, primarily property interests, but also those related to personal rights. Therefore, you cannot commit abuses by invoking fair use - for example, transferring the research results of another scientist to a scientist you know as part of "fair use". Although theoretically this is in line with the premises of Art. 23 Pr.Aut., this violates the legitimate interest of the creator. If the general conditions for fair use are met, the infringement of the legitimate interest of the creator justifies his invoking Art. 35 PrAut to defend his personal rights.
Fair use – something that cannot be forgotten?
Firstly, it must be emphasised that one cannot derive rights directly from fair use! This is because fair use does not create a subjective right on the part of the user, but rather narrows the scope of the creator’s copyright monopoly. According to the ECJ judgment in Case C-265/16, it is the rightholder who ‘must refrain from exercising the exclusive right to which they are entitled’. A consequence of this approach is that the author cannot rely on Article 5 of the Civil Code (abuse of a subjective right) when defending against a third party’s interference with his rights on the basis of fair use. Legal scholarship holds that Article 35 of the Copyright Act constitutes such a limiting provision, and that it is this provision which applies when the author considers that a user is encroaching too far upon their moral rights.
Secondly – and this is also important, though often overlooked – the provisions described regarding fair use also apply to related rights, which derive from the same Act. This means that phonograms, videograms, artistic performances and other related rights may be utilised under the same principles. It should be borne in mind that this is a regime of protection similar to that of copyright, but nevertheless slightly different, and also a distinct legal regime. Copyright is a separate law, and related rights are a separate law.
Thirdly – certain works are excluded from fair use, a point to which one should always pay attention. For example, computer programmes may not be used under the principle of fair use for personal purposes (in this regard, specific provisions apply in the section of the Act on Computer Programmes), electronic databases (except for non-commercial use), nor may one construct a building based on another person’s architectural or architectural-urban planning work (in other respects, these works may be used pursuant to Article 23).
Fourthly – fair use justifies only the use of another person’s intellectual property (works) within the copyright framework! It is therefore possible, through the use of another person’s work, to infringe other rights, such as, for example, the right to a trade mark, an industrial design, personal rights, the confidentiality of correspondence, etc.
And that concludes the first part of our discussion on fair use. It is a fairly intuitive concept, but when it comes to analysing its conditions in detail, the matter becomes very ambiguous and complicated. This text is over 3,000 words long, yet it only provides a general outline of the issues under discussion. A second article detailing the various forms of fair use will appear shortly on the Kłodziński Law Firm’s legal blog; in the meantime, we can recommend our
text on the possibility - from a legal point of view - of sharing an e-book with friends!
