Fair use – a few words. When can you use someone else's work?

Krzysztof Bardel|
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Copyright law surrounds us basically all the time in various spheres of life. It is easy to violate someone else's rights in this regard - especially in the era of such widespread use of the Internet. However, the regulations in our country are not brutal and create – paradoxically – a wide range of possibilities for using other people's works. So let's look at the taxonomy of copyright in the above-mentioned scope and consider when we are entitled to use someone else's intellectual property., so what is fair use.

First of all, let's define what fair use actually is. Although this term linguistically indicates that we are dealing with an institution that creates the possibility of using something, it should be clarified what exactly the rights make up its entirety.

Fair use is an institution provided for in the Copyright Act
and Related Rights (hereinafter referred to as the Copyright Act), which creates the possibility of using other people's works protected by property rights (1) without the consent of the entitled entity and (2) without remuneration (in principle). Therefore, it is the right (the word "right" was not used on purpose, as discussed in the last part) to legally use a work to which someone else has rights, without the need to obtain their consent, also free of charge, while fulfilling certain obligations.

To apply fair use…

…we have to deal with the song. This is a concept that has the nature of a legal definition, resulting from Art. 1 Auto Therefore, according to the first paragraph of the above: "the subject of copyright is any manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and method of expression (work)". Therefore, distinguishing the individual conditions that a given work must meet,
To be considered a work, and therefore also covered by copyright protection, the following must be indicated:

  1. Manifestation of creative activity;
  2. The individual nature of the work;
  3. Establishing the work in any form;
  4. *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?

After determining that a given work is a work within the meaning of Copyright Law, it is necessary to briefly explain what rights the creator is entitled to in order to determine the possible scope of "interference" with it on the basis of fair use. It should be noted here that copyrights are generally created in favor of the creator. However, the Act provides for exceptions to this rule when they are created originally or for the benefit of another entity. It is always possible to transfer copyrights. Therefore, copyrights may be held by various entities. For the purposes of this article, the term "author" covers all these entities - not only the person who created the work, but also other entitled persons, regardless of the basis.

The exclusive copyright of the creator is of two types. Firstly, we can talk about property rights, and secondly, about personal 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 authorized 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 obligations that constitute the possibility of using this institution.

As you can see, there is a quite clear separation between the sphere of rights that entitle the creator to obtain material benefits from the created work and the one that protects his bond with the work and allows respect for the creator's contribution to the creation of the work. Ratio legis both are different, so they should be treated slightly differently. The difference can also be quite well illustrated by their English nomenclature - "economic rights" and "moral rights", respectively - so on the one hand, economics, and on the other, morality.

Fair use primarily refers to the limitation of the creator's economic rights, but its application requires respect for personal rights, more about 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. 23-359. Individual articles establish specific types of it, because it has its enumerated forms. And although some of them are described very broadly and many things can be "attached" to them, it can be said that the Polish law creates a closed catalog of types of permitted use.

DPermitted use can be divided primarily into two types. This applies to permitted personal and public use. The first of them is based on Article 23 of the Automotive Law, and the second is a collective term for the remaining forms. The distinction is made between the purpose of using the work - private, i.e. for one's own use and those of the immediate environment, or public, i.e. aimed at non-private use (e.g. fair use for educational/school purposes, library purposes, reprinting, etc.).

Another classification, which is neither exhaustive nor binding, but primarily organizing, is the one proposed by prof. Ryszard Markiewicz in the publication titled "Illustrated copyright" - in chapter 7.1, on page 321. This scheme divides the forms of fair use according to 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, constitute the above-mentioned exhaustive catalog of forms of fair use operating in Polish copyright law. The division into permitted private and public use may be somewhat misleading, but useful - after all, the former has only one designation, and all other forms of permitted use are included in the second group, but this differentiation is fully justified due to the differences between them.

Each form of permitted use is different, but at the same time they all have common elements. It is possible, and even purposeful and crucial, to exclude the premises
that apply to each of them. These premises are:

  1. Using the work under a statutory exception (one of the forms of fair use);
  2. Prior dissemination of the work being used (respecting the creator's right to make it available for the first time);
  3. Respect for the author's personal rights (Article 34 of the Automotive Law);
  4. Use of the work in accordance with Art. 35 Pr.Aut., so:
    1. Without prejudice to the normal use of the work,
    1. Without harming the legitimate interests of the creator.

As you can see, the conditions for using a work under the principle of fair use are both positive and negative. Positive are those that indicate what must be done to be able to use the work, and negative are those that specify what you cannot do at the same time. In this respect, the most important is Article 35 of the Auto Law. establishing negative premises, but more on that in a moment.

The first two conditions, i.e. use within the scope of a statutory exception and prior dissemination of the work, do not seem to raise any serious doubts. In order to invoke fair use, one must rely on a specific example specified in the act (for example, on the right to quote described in Article 29 of the Copyright Act). However, it must be remembered that the conditions described in this provision must always be met.

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:
      • Explanation or
      • Polemics or
      • 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 condition number 2 - must be disseminated. It is also, like the "work" itself, a concept with a legal definition, so it leaves no room for interpretation. Pursuant to Art. 6 point 3 Auto. "a distributed work is a work which, with the author's consent, has been made publicly available in any way." This means that as long as we use a work that has been legally made available to the public in accordance with the will of the creator, we meet this condition. In practice, we almost always deal with such songs, so it shouldn't keep you awake at night!

As for premise number 3, i.e. respect for the creator's personal rights, this is a kind of separation of interference with property rights from non-interference with personal rights, as signally mentioned earlier.

Art. 34 Law Author: "You can use works within the limits of fair use under provided that the name and surname of the author and the source are mentioned. Giving the creator and source should take into account existing possibilities. The creator is not entitled to remuneration, unless the law provides otherwise.

Therefore, the legislator clearly emphasizes that despite the creator's obligation to endure certain interference with his exclusive rights, the user is not exempt from respecting his personal rights - in particular, in this case, the right to mark the authorship of the work. Therefore, it should be remembered that any form of permitted use can only be used if the author is marked and the source of origin is indicated.

Example: Above, by right of quotation, a diagram from the book by prof. Ryszard Markiewicz. Fulfilling the obligation under Art. 34 Pr.Aut. was:

  1. Providing the author's name and surname;
  2. Providing the source, i.e. the title of the book, chapter, as precisely as possible.
    and even pages.

Moreover, according to the provisions of the provision, specifying the creator and source should take into account existing possibilities. This means that if you want to include in your work a photograph of an artistic work, for example Banksy, you should write: "Banksy, own photography". Therefore, taking into account existing possibilities, it is possible to provide Banksy's name and surname, because, in accordance with the artist's will, these details remain unknown. If the above provision were to be interpreted literally, the inability to provide the name and surname would block the invocation of fair use, which is pointless. Therefore, it will be sufficient to provide his nickname. The situation is similar with anonymous works - one of the author's personal rights is to publish an anonymous work in order to deliberately hide his identity. Then, knowing that the work is anonymous, you should inform about it (“author unknown”/”anonymous work”).

On the other hand, the same provision that sometimes releases us from the obligation to find the name and surname of the creator at all costs also imposes certain obligations on us. If, for example, the author of a photo we found in Google images is not given, but at the same time we are able to find him with little effort (for example by visiting another website), then we are obliged to provide the name - the existing possibilities create an opportunity to finding this data relatively quickly and easily. Therefore, you should always realistically assess to what extent it is possible to provide the name and surname of the creator.

Article 35 Auto Law – limiting premises

A seemingly short and inconspicuous article. 35 Pr.Aut. is crucial for the possibility of fair use and causes the most problems of interpretation. It reads: "permitted use may not violate the normal use of the work or harm the legitimate interests of the author." These concepts are intentionally vague and are grounded in international legal culture.

Fair use and similar institutions (e.g. fair use in the USA) have certain common elements that allow national laws to be treated more or less similarly across countries. After all, nowadays - an era when we can have access to almost any work that comes to mind via a browser in a few seconds - disputes in this area may have an interstate nature. Therefore, it is good for at least the main assumptions of individual copyright systems to have similar assumptions.

In European law, a similar solution is provided for in Directive 2001/29/EC, and more specifically in its Art. 5 section 5. It defines a three-stage test, which is precisely the element of international legal culture that unites individual national copyright law systems. This three-step test is:

  1. Use within the framework of an exceptional case specified in the Act,
  2. Not violating the normal use of the work,
  3. Not causing unjustified damage to the interests of the entitled person (author).

Since this provision results from an EU directive, it required implementation into national law. As you can easily guess, this took place due to Art. 35 Pr.Aut. However, the question arises whether this implementation was defective due to the lack of a literal mention in Art. 35 of the first premise. The answer to this question results from the very structure of fair use in the Polish act - after all, there is no other option than to use it except in an exceptional case specified in the act (the individual categories/types of fair use described above, the exhaustive catalog from Article 23 of the Law. et seq.). It should also be noted here that by the fact that the grounds for fair use are described in the EU directive, Polish courts are bound by the interpretation of the provisions implemented by the CJEU due to the principle of uniform application of law in the Member States and the principle of sincere cooperation. It is worth remembering this in all types of disputes based on the provisions on fair use - the case law of the CJEU can be very helpful.

Finally, we should consider what lies beneath the enigmatic premises.

Normal use of a work is, in short, consistency with the normal use of the work. This concept - in accordance with the CJEU guidelines - should be interpreted narrowly. The concept itself is deliberately vague and is assessed casuistically in each case - well, this is where the role of a lawyer comes into play! Two additional quotes may be helpful 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 creativity, freedom of expression, freedom of economic activity - these interests also set the boundaries of "normal" use of a work with 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 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?

First of all, it is worth emphasizing that you cannot derive your rights directly from permitted use! Fair use does not create a subjective right on the part of the user, but narrows the scope of the creator's copyright monopoly. According to the judgment of TS C-265/16, the authorized entity "must refrain from exercising its exclusive right". The consequence of such a concept is the impossibility for the creator to invoke Article 5 of the Civil Code (abuse of a subjective right) in the event of defense against interference by a third party in his rights under the principle of fair use. The doctrine assumes that this type of limiting institution is Art. 35 Pr.Aut. and it is used when the creator thinks that the user is encroaching too far on his personal rights.

Secondly - what is also important, and often overlooked - the described solutions in the field of fair use also apply to related rights that have their source in the same act. This means that phonograms, videograms, artistic performances and other related rights can be used on the same terms. Please remember that this is a similar protection regime to copyright law, but still a slightly different one, as well as a different legal regime. Copyright is a separate right, and related law is a separate right.

Thirdly, some works are excluded from fair use, which you should always pay attention to. For example, you cannot use computer programs on the basis of permitted personal use (specific solutions in this respect in the fragment of the Act on Computer Programs), electronic databases (except for non-profit use) and you cannot build according to someone else's architectural and architectural-urban planning work ( these works may be used to a different extent pursuant to Article 23).

Fourthly, fair use only justifies the use of someone else's intellectual property (works) under the copyright regime! Therefore, by using someone else's work, it is possible to violate other rights, such as the right to a trademark, industrial design, personal rights, confidentiality of correspondence, etc.

And this is the end of the first part of the considerations about fair use. It is quite an intuitive institution, but when it comes to analyzing its premises in detail, the matter becomes very blurry and complicated. This text is over 3,000 words long and only briefly outlines the issues covered. A second article characterizing individual forms of fair use will soon appear on the Kłodziński Law Firm's legal blog, and in the meantime, we can recommend our text on the possibility - from a legal point of view - of sharing an e-book with friends!

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Copyright law surrounds us basically all the time in various spheres of life. It is easy to violate someone else's rights in this regard - especially in the era of such widespread use of the Internet. However, the regulations in our country are not brutal and create – paradoxically – a wide range of possibilities for using other people's works. So let's look at the taxonomy of copyright in the above-mentioned scope and consider when we are entitled to use someone else's intellectual property., so what is fair use.

First of all, let's define what fair use actually is. Although this term linguistically indicates that we are dealing with an institution that creates the possibility of using something, it should be clarified what exactly the rights make up its entirety.

Fair use is an institution provided for in the Copyright Act
and Related Rights (hereinafter referred to as the Copyright Act), which creates the possibility of using other people's works protected by property rights (1) without the consent of the entitled entity and (2) without remuneration (in principle). Therefore, it is the right (the word "right" was not used on purpose, as discussed in the last part) to legally use a work to which someone else has rights, without the need to obtain their consent, also free of charge, while fulfilling certain obligations.

To apply fair use…

…we have to deal with the song. This is a concept that has the nature of a legal definition, resulting from Art. 1 Auto Therefore, according to the first paragraph of the above: "the subject of copyright is any manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and method of expression (work)". Therefore, distinguishing the individual conditions that a given work must meet,
To be considered a work, and therefore also covered by copyright protection, the following must be indicated:

  1. Manifestation of creative activity;
  2. The individual nature of the work;
  3. Establishing the work in any form;
  4. *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?

After determining that a given work is a work within the meaning of Copyright Law, it is necessary to briefly explain what rights the creator is entitled to in order to determine the possible scope of "interference" with it on the basis of fair use. It should be noted here that copyrights are generally created in favor of the creator. However, the Act provides for exceptions to this rule when they are created originally or for the benefit of another entity. It is always possible to transfer copyrights. Therefore, copyrights may be held by various entities. For the purposes of this article, the term "author" covers all these entities - not only the person who created the work, but also other entitled persons, regardless of the basis.

The exclusive copyright of the creator is of two types. Firstly, we can talk about property rights, and secondly, about personal 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 authorized 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 obligations that constitute the possibility of using this institution.

As you can see, there is a quite clear separation between the sphere of rights that entitle the creator to obtain material benefits from the created work and the one that protects his bond with the work and allows respect for the creator's contribution to the creation of the work. Ratio legis both are different, so they should be treated slightly differently. The difference can also be quite well illustrated by their English nomenclature - "economic rights" and "moral rights", respectively - so on the one hand, economics, and on the other, morality.

Fair use primarily refers to the limitation of the creator's economic rights, but its application requires respect for personal rights, more about 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. 23-359. Individual articles establish specific types of it, because it has its enumerated forms. And although some of them are described very broadly and many things can be "attached" to them, it can be said that the Polish law creates a closed catalog of types of permitted use.

DPermitted use can be divided primarily into two types. This applies to permitted personal and public use. The first of them is based on Article 23 of the Automotive Law, and the second is a collective term for the remaining forms. The distinction is made between the purpose of using the work - private, i.e. for one's own use and those of the immediate environment, or public, i.e. aimed at non-private use (e.g. fair use for educational/school purposes, library purposes, reprinting, etc.).

Another classification, which is neither exhaustive nor binding, but primarily organizing, is the one proposed by prof. Ryszard Markiewicz in the publication titled "Illustrated copyright" - in chapter 7.1, on page 321. This scheme divides the forms of fair use according to 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, constitute the above-mentioned exhaustive catalog of forms of fair use operating in Polish copyright law. The division into permitted private and public use may be somewhat misleading, but useful - after all, the former has only one designation, and all other forms of permitted use are included in the second group, but this differentiation is fully justified due to the differences between them.

Each form of permitted use is different, but at the same time they all have common elements. It is possible, and even purposeful and crucial, to exclude the premises
that apply to each of them. These premises are:

  1. Using the work under a statutory exception (one of the forms of fair use);
  2. Prior dissemination of the work being used (respecting the creator's right to make it available for the first time);
  3. Respect for the author's personal rights (Article 34 of the Automotive Law);
  4. Use of the work in accordance with Art. 35 Pr.Aut., so:
    1. Without prejudice to the normal use of the work,
    1. Without harming the legitimate interests of the creator.

As you can see, the conditions for using a work under the principle of fair use are both positive and negative. Positive are those that indicate what must be done to be able to use the work, and negative are those that specify what you cannot do at the same time. In this respect, the most important is Article 35 of the Auto Law. establishing negative premises, but more on that in a moment.

The first two conditions, i.e. use within the scope of a statutory exception and prior dissemination of the work, do not seem to raise any serious doubts. In order to invoke fair use, one must rely on a specific example specified in the act (for example, on the right to quote described in Article 29 of the Copyright Act). However, it must be remembered that the conditions described in this provision must always be met.

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:
      • Explanation or
      • Polemics or
      • 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 condition number 2 - must be disseminated. It is also, like the "work" itself, a concept with a legal definition, so it leaves no room for interpretation. Pursuant to Art. 6 point 3 Auto. "a distributed work is a work which, with the author's consent, has been made publicly available in any way." This means that as long as we use a work that has been legally made available to the public in accordance with the will of the creator, we meet this condition. In practice, we almost always deal with such songs, so it shouldn't keep you awake at night!

As for premise number 3, i.e. respect for the creator's personal rights, this is a kind of separation of interference with property rights from non-interference with personal rights, as signally mentioned earlier.

Art. 34 Law Author: "You can use works within the limits of fair use under provided that the name and surname of the author and the source are mentioned. Giving the creator and source should take into account existing possibilities. The creator is not entitled to remuneration, unless the law provides otherwise.

Therefore, the legislator clearly emphasizes that despite the creator's obligation to endure certain interference with his exclusive rights, the user is not exempt from respecting his personal rights - in particular, in this case, the right to mark the authorship of the work. Therefore, it should be remembered that any form of permitted use can only be used if the author is marked and the source of origin is indicated.

Example: Above, by right of quotation, a diagram from the book by prof. Ryszard Markiewicz. Fulfilling the obligation under Art. 34 Pr.Aut. was:

  1. Providing the author's name and surname;
  2. Providing the source, i.e. the title of the book, chapter, as precisely as possible.
    and even pages.

Moreover, according to the provisions of the provision, specifying the creator and source should take into account existing possibilities. This means that if you want to include in your work a photograph of an artistic work, for example Banksy, you should write: "Banksy, own photography". Therefore, taking into account existing possibilities, it is possible to provide Banksy's name and surname, because, in accordance with the artist's will, these details remain unknown. If the above provision were to be interpreted literally, the inability to provide the name and surname would block the invocation of fair use, which is pointless. Therefore, it will be sufficient to provide his nickname. The situation is similar with anonymous works - one of the author's personal rights is to publish an anonymous work in order to deliberately hide his identity. Then, knowing that the work is anonymous, you should inform about it (“author unknown”/”anonymous work”).

On the other hand, the same provision that sometimes releases us from the obligation to find the name and surname of the creator at all costs also imposes certain obligations on us. If, for example, the author of a photo we found in Google images is not given, but at the same time we are able to find him with little effort (for example by visiting another website), then we are obliged to provide the name - the existing possibilities create an opportunity to finding this data relatively quickly and easily. Therefore, you should always realistically assess to what extent it is possible to provide the name and surname of the creator.

Article 35 Auto Law – limiting premises

A seemingly short and inconspicuous article. 35 Pr.Aut. is crucial for the possibility of fair use and causes the most problems of interpretation. It reads: "permitted use may not violate the normal use of the work or harm the legitimate interests of the author." These concepts are intentionally vague and are grounded in international legal culture.

Fair use and similar institutions (e.g. fair use in the USA) have certain common elements that allow national laws to be treated more or less similarly across countries. After all, nowadays - an era when we can have access to almost any work that comes to mind via a browser in a few seconds - disputes in this area may have an interstate nature. Therefore, it is good for at least the main assumptions of individual copyright systems to have similar assumptions.

In European law, a similar solution is provided for in Directive 2001/29/EC, and more specifically in its Art. 5 section 5. It defines a three-stage test, which is precisely the element of international legal culture that unites individual national copyright law systems. This three-step test is:

  1. Use within the framework of an exceptional case specified in the Act,
  2. Not violating the normal use of the work,
  3. Not causing unjustified damage to the interests of the entitled person (author).

Since this provision results from an EU directive, it required implementation into national law. As you can easily guess, this took place due to Art. 35 Pr.Aut. However, the question arises whether this implementation was defective due to the lack of a literal mention in Art. 35 of the first premise. The answer to this question results from the very structure of fair use in the Polish act - after all, there is no other option than to use it except in an exceptional case specified in the act (the individual categories/types of fair use described above, the exhaustive catalog from Article 23 of the Law. et seq.). It should also be noted here that by the fact that the grounds for fair use are described in the EU directive, Polish courts are bound by the interpretation of the provisions implemented by the CJEU due to the principle of uniform application of law in the Member States and the principle of sincere cooperation. It is worth remembering this in all types of disputes based on the provisions on fair use - the case law of the CJEU can be very helpful.

Finally, we should consider what lies beneath the enigmatic premises.

Normal use of a work is, in short, consistency with the normal use of the work. This concept - in accordance with the CJEU guidelines - should be interpreted narrowly. The concept itself is deliberately vague and is assessed casuistically in each case - well, this is where the role of a lawyer comes into play! Two additional quotes may be helpful 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 creativity, freedom of expression, freedom of economic activity - these interests also set the boundaries of "normal" use of a work with 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 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?

First of all, it is worth emphasizing that you cannot derive your rights directly from permitted use! Fair use does not create a subjective right on the part of the user, but narrows the scope of the creator's copyright monopoly. According to the judgment of TS C-265/16, the authorized entity "must refrain from exercising its exclusive right". The consequence of such a concept is the impossibility for the creator to invoke Article 5 of the Civil Code (abuse of a subjective right) in the event of defense against interference by a third party in his rights under the principle of fair use. The doctrine assumes that this type of limiting institution is Art. 35 Pr.Aut. and it is used when the creator thinks that the user is encroaching too far on his personal rights.

Secondly - what is also important, and often overlooked - the described solutions in the field of fair use also apply to related rights that have their source in the same act. This means that phonograms, videograms, artistic performances and other related rights can be used on the same terms. Please remember that this is a similar protection regime to copyright law, but still a slightly different one, as well as a different legal regime. Copyright is a separate right, and related law is a separate right.

Thirdly, some works are excluded from fair use, which you should always pay attention to. For example, you cannot use computer programs on the basis of permitted personal use (specific solutions in this respect in the fragment of the Act on Computer Programs), electronic databases (except for non-profit use) and you cannot build according to someone else's architectural and architectural-urban planning work ( these works may be used to a different extent pursuant to Article 23).

Fourthly, fair use only justifies the use of someone else's intellectual property (works) under the copyright regime! Therefore, by using someone else's work, it is possible to violate other rights, such as the right to a trademark, industrial design, personal rights, confidentiality of correspondence, etc.

And this is the end of the first part of the considerations about fair use. It is quite an intuitive institution, but when it comes to analyzing its premises in detail, the matter becomes very blurry and complicated. This text is over 3,000 words long and only briefly outlines the issues covered. A second article characterizing individual forms of fair use will soon appear on the Kłodziński Law Firm's legal blog, and in the meantime, we can recommend our text on the possibility - from a legal point of view - of sharing an e-book with friends!

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