RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/POL/1
23 December 1998
(98-5159)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON COPYRIGHT AND RELATED RIGHTS
POLAND1
The present document reproduces the questions put to the delegation of Poland and the
responses given in the review of legislation on copyright and related rights at the Council's meetings
of 12 May 1998 and 16 July 1998.2
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I. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
1. It is our understanding that the Polish Act on Copyright and Neighbouring Rights ("Act")
grants rights to Polish performers, producers of phonograms and broadcasting organisations which are
not granted to foreign performers, producers of  phonograms and broadcasting organisations.  If this is
the case, please explain how the Act complies with  Article 3 in conjunction with Articles 65.3 and 65.2
of the TRIPS Agreement.
The Polish Act on Copyright and Neighbouring Ri ghts applies not only to a domestic subject-
matter of neighbouring rights but also to a phonogram, artistic performance and programme whoseprotection is guaranteed by international conventi ons.  This is connected with a solution adopted in
Article 90 Section 4, Article 96 Section 2, and Article 99 Section 2 of the Act.  The TRIPS Agreement is
the agreement mentioned in the aforementioned Articles.   As a result of reference of the Polish Act to
the protection arising from international agreemen ts, "foreign" phonograms, artistic performances and
broadcasting organization programmes may be protect ed within the territory  of Poland.  Protection
guaranteed by the TRIPS Agreement is based on the principle of national treatment, Article 3, pursuant
to which each member state is obliged to grant to foreign entities treatment no less favourable than that
granted to its own entities.  In our opinion, it must be borne in mind that this principle, when referred to
neighbouring rights, is of a relative nature, i.e. it refe rs, pursuant to Article 3, only to the rights specified
in the TRIPS Agreement.  In practice, it means that the obligation refers only to the rights specified in
Article 14 of the TRIPS Agreement.   Within that scope (excluding, however, retroactive protection of
phonograms), the Polish Act provides for a level of protection specified for neighbouring rights.  Filing
a notification pursuant to Article 65.3 does not eliminat e the obligation to apply the principle of national
treatment:  nevertheless it adjourns with respect to our  country the application of most provisions of the
                                                     
1 As regards laws and regulations relevant to the areas of copyright and related rights as notified by
Poland under Article 63.2 of the Agreement, reference is made to documents IP/N/1/POL/1/Rev.1, andIP/N/1/POL/C/1 and 2.
2 The minutes of these meetings have been circulated in documents IP/C/M/18 and IP/C/M/19
respectively.IP/Q/POL/1
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Agreement, which means that it also adjourns th e necessity to extend the retroactive protection of
foreign phonograms.
2. Article 126 of the Act provides that it applies, among others, to phonograms which were made
within 20 years preceding the entry in to force of the Law.  As a result, it would appear that pre-1974
recordings, which have not yet fallen into public dom ain through the expiry of the term of protection,
are not protected under the Act.  If this is the case, please explain how Article 126 complies with
Article 14.6 of the TRIPS Agreement in conjunc tion with Article 18 of the Berne Convention.
As it arises from Article 95 of the Polish Act on Copyright and Neighbouring Rights, the rights
of the phonogram producer shall expire after the lapse of 50 years following the year in which a
phonogram was made.  The only exception to that rule  is the protection of phonograms created before
the Act came into force (i.e. 24 May 1994).  Pursuant to Article 126 1 Item 3, this retroactive protection
of phonograms was limited only to  phonograms created  or broadcast within the period of 20 years
preceding the date when the Act came into force.  Such a solution does not fulfil the requirements
contemplated by Article 14.6 of the TRIPS Agreemen t.  It should be emphasized, however, that Poland
which is now in the period of transition from a centr ally planned to a free market economy, and which
adopts structural reforms of the intellectual propert y system and faces specific problems connected with
the preparation and introduction of the legislation with in that scope, exercised the right to adjourn the
application of most provisions of TRIPS (e.g. Artic le 14.6).  Hence, at present, it is not obliged to
provide full protection to foreign entities within the scope specified in the TR IPS Agreement.  It is,
however, obvious that after the end of the adj ournment period, Poland will introduce the applicable
protection of phonograms within the scope required by the TRIPS Agreement.
3. Article 124.3 of the Act provides that "owners of  computer programs created prior to this Act
coming into force and protected under paragraph 1 above, may not be made responsible for the
infringement of copyright prior to such date".  Could the Government of Poland please clarify the
meaning and scope of this provision?
Pursuant to Article 124 Section 3 of the Polis h Act on Copyright and Neighbouring Rights, the
owner of software created before the date when  the Act came into force (i.e. 24 May 1994) and
protected pursuant to Article 1 of the Act may not be  made responsible for the infringement of copyright
which occurred before that date.  This is related to the sanctioning of the approv al of the use of computer
programs regardless of the manner in which its user acquired such computer programs.  This regulationallows the owner of computer programs to use it to  the same extent as it was used before.  This
provision, being a provision of a specific nature, is not subject to any broader interpretation.  It does not
entitle to any further use of computer programs, and in particular to the copying or distributing of such
computer programs.  Regulation cont ained in Article 75 fully applies to such computer programs, since
Article 75 specifies permitted limits of use of that computer programme by its authorized user inaccordance with its purpose.  As it arises from the e xplanations presented above, the indicated regulation
does not create any special rights in favour of en tities covered by the scope of Article 124, Section 3.
Indemnification and holding harmless for the infringement of copyright does not limit in any way
relevant claims of the copyright ow ner to computer programs due to:
- breach of terms and conditions of the agreement;
- illegal act;
- breach of regulations of Act on Combating Unfair Competition.
4. Article 21 of the Act provides that "public radio and television broadcas ting organizations shall
be allowed to broadcast published works which are not feature films, feature series inclusive".  HowIP/Q/POL/1
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does this provision comply with Article 9 of the TRIPS Agreement in conjunction with Article 11bis of
the Berne Convention which states that "authors of literary and artistic works shall enjoy the exclusive
right of authorizing the br oadcast of their works or the communication thereof to the public by any other
means of wireless diffusion of signs, sounds or images"?
Article 11 bis Section 1 of the Berne Convention prov ides that authors shall be granted
protection with respect to the broadcasting of thei r works or the communication thereof to the public by
any other means of wireless diffusion of sounds or images.  However, according to Section 2 of that
Article, member states are entitled to determine conditions  for the exercise of that exclusive right.  It is
commonly assumed that this regulation allows to in troduce, in the internal legislation of the member
states of the Convention, limitations in exercising that right by means of statutory licences.  These
conditions may not in any way infringe the authors' mo ral rights or his/her right to receive equitable
remuneration.  Regardless of that, these particular conditions may refer only to the territory of a country
which determined them.  Article 21 of the Polish Act on Copyright and Neighbouring Rights fulfils all
the requirements stated above.  Therefore, it shoul d be recognized that this Article corresponds with
Article 9 of the TRIPS Agreement in connection with Article 11 bis of the Berne Convention.
5. Article 31 of the Act provides that "it shall be permitted to perform for the public the literary
works, musical works, textual and musical works ha ving been published if it is not connected with any
material benefits".  This concerns, among others, " …events accessible to the public …".  Please clarify
how this provision is interpreted, in particular against the background of Article 13 of the TRIPS
Agreement which states that limitations or exceptions to the exclusive right shall be confined to certain
special cases "which do not conflict with a nor mal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the right holder".
Provisions contained in Article 31 of the Act in troduce an exception to exclusive rights of the
author of a work, namely they limit the exclusive righ t to a public performance of a work.  However, the
form of use of the work permissible by the legisl ation should be construed (similarly to other limitations
of exclusive economic rights of the author) taking into account the general rule contained in Article 35
of the Act.  According to that rule "the permitted use must not infringe the normal use of the work or
violate the rightful interests of the author".  The content of Article 31 when combined with Article 35
fully complies with the regulation containe d in Article 13 of the TRIPS Agreement.
[Follow-up question]
Could the Government of Poland provide some  examples/cases – taken, for example, from
Polish case law and/or the relevant drafting history – to illustrate the practical application of the
exception from copyright protection, as  contained in Article 31 in conjunction with Article 35 of the
Polish Act on Copyright and Neighbouring Rights.
Article 31 in conjunction with Article 35 of  the Polish Act on Copyright and Neighbouring
Rights refers, for example, to such cases:
(1) Disco organized in a school by pupils.(2) School celebrations.(3) Religious pilgrimages.
(4) Performances in clubs.
6. Please explain whether and how the Polish copy right legislation implements Article 11 of the
TRIPS Agreement with respec t to cinematographic works.IP/Q/POL/1
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The Polish Act does not use the term "cinematographic work" but it creates a category of an
audiovisual work which is a wider concept and includes cinematographic works.  Article 17 in
connection with Article 70, Section 1 of the Polis h Act on Copyright and Neighbouring Rights grants
the authors' economic rights to the producer of an a udiovisual work who shall have an exclusive right to
use and dispose of the work in the fields of explo itation mentioned in Article 50.  Item 8 of Article 50
mentions lease of the work as a separate field of exploitation.  Regulation contained in article 50 Item 8
is of a general nature and refers to all categories  o f  w o r k s .   T h i s  m e a n s  that the Polish regulation
conforms to the provision of Article 11 of the TRIPS Agreement.
7. Please also explain how the Polish c opyright legislation protects anonymous and
pseudonymous works.
In accordance with the provisions of the Act (Article 16), the author who possesses certain
moral rights related to the work may decide to sign  the work with his/her name or pseudonym or make it
available to the public anonymously.  Defining in this way the authors' moral rights, the Act does not
differentiate the protection between works signed by  name and works signed by a pseudonym or made
available anonymously.  The only difference arising fro m making available the work without specifying
the author's name is that copyright held by such author is then exercised by the producer or publisher,
and in the case that there is no producer or publisher by a relevant collective administration organization
(Article 8, Section 3), and furthermor e, that authors' economic rights expire after the lapse of 50 years
following the first publication, and in the situation where the work was not published, following the date
of its fixation, unless the name of the author was re vealed before the end of that period (Article 36,
Item 2 of the Act).  Classification of these rights as  the authors' moral rights causes that in the case of
their infringement the author has right to clai m protection of these rights before the court.
Pursuant to Article 7/8 the author whose moral rights have been threatened by actions taken by
third parties may request such actions to be cease d.  In the case of violation, one may demand that a
person who infringed the rights undertakes actions which are necessary for the elimination of its
consequences and, in particular, to make a public statem ent with an applicable fo rm and content.  If the
infringement was culpable, the court may award to the author an applicable amount of money as a
compensation for the damage incurred or – upon the reque st of the author – oblige the perpetrator to pay
an applicable amount of money for a soci al cause as indicated by the author.
8. Article 14.2 of the TRIPS Agreement provides  that producers of phonograms shall enjoy the
right to authorize or prohibit the direct or indi rect reproduction of their phonograms.  Please clarify
whether and how the Act impl ements this obligation.
Provisions of Article 94, Section 2, Item 1 gr ant to producers of phonograms and videograms an
exclusive right to dispose of and use the phonogram and videogram within the scope of reproduction by
a specific technique.  Hence, the Polish Act corres ponds with the regulations of Article 14, Section 2 of
the TRIPS Agreement.
II. QUESTIONS POSED BY JAPAN
1. Please explain whether and how the Copyright Law of Poland provides protection for works,
phonograms and performances of othe r WTO Members, and please describe the provision in the
Copyright Law of Poland which provides for the national treatment (NT) and most-favoured-nation
treatment (MFN) as required by  TRIPS Article 3, Article 4, and Article 9.1 incorporating Berne
Article 5.1.
The Polish Act on Copyright and Neighbouring Rights grants protection to foreign entities
(Members of the TRIPS Agreement) according to the pr inciples specified in international agreements toIP/Q/POL/1
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which the Republic of Poland is a party.  With regard to copyright, Article 5, Item 4 is a regulation
referring to regulations of the conventions, whereas  with regard to neighbour ing rights (protection of
performers, producers of phonograms and videograms and broadcasting organizations) – regulations of
Article 90, Item 4, Article 96, Item 2 and Article 99, Item 2 of the Act on Copyright and Neighbouring
Rights.  Agreements relating to intellectual propert y are based on the principle of national treatment.
This also refers to the TRIPS Agre ement.  However, this document in troduces in Article 4 the principle
of the "most-favoured-nation status" which has not been present in the previous international
conventions concerned with intellectual property.  Polish law fulfils the above-mentioned rules.  For
exceptions see below.
2. Please explain exceptions or exemptions for NT and MFN, if any, in the Copyright Law of
Poland as permitted by Articles 3 and 4 of the TRIPS Agreement.
In our opinion, Article 51, Section 3 of the Polish Act on Copyright and Neighbouring Rights
constitutes a legal basis for the formulation of an ex ception to the principle of the most-favoured-nation
status.  This regulation introduces an institution of the so-called international (ex-territorial) exhaustion
of law, being an exception to the general rule of te rritorial scope of exhaustion of copyright which arises
from Article 51, Sections 1 and 2.  Article 51, Sect ion 3 limits, however, the scope of international
exhaustion to the area in which a free trade zone is located.  Pursuant to international agreements
concluded by Poland, this zone covers the territory of our country.
Poland has entered into a number of bilateral ag reements on the establishment of such zones.
The Agreement on the Association of 1991 also provid es for an obligation to gradually create a free
trade zone between Poland and the European Union countries.  Pursuant to Article XXIV GATT, free
trade zones and customs unions are one of the excep tions to the principle of the most-favoured-nation
status.
3. Please explain whether Article 1 of the C opyright Law of Poland, which provides for the
protection of computer programs,  includes programs in both source code and object code and please
explain how the Copyright Law of Poland comp lies with Article 10.1 of the TRIPS Agreement.
The Polish Act on Copyright and Neighbouring Rights protects computer programs which
constitute works in the understanding of Article 1, Section 1 of the aforementioned Act.  Article 1
expresses a general principle.  Additionally, th e Act on Copyright and Neighbouring Rights contains
specific regulations concerning the protection of com puter programs.  Specific regulations are contained
in Chapter 7 of the Act – specific regulations concerning computer programs (Article 74–77).
Article 74, Section 2 provides that protection grante d to a computer program comprises all forms of its
expression, including all forms of design, manuf acture and user documentation.  This regulation
expressly indicates that the Act protects all forms of expression of the program (form of the program)
regardless of the manner in which it is stored.  Protec tion is granted to programs stored both in the form
of a source code and output code.  The Polish Act is  based on an assumption that the form of a program
does not affect the legal capacity of its author.  Th e scope of the subject-matter of sentence 1 contained
in Article 74, Section 2 of the Act on Copyright a nd Neighbouring Rights is broader than the scope of
Article 10.1 of the TRIPS Agreement which refers only to two forms of storing the computer programs.
Article 74.1 states precisely that computer programs are subject to protection just like literary works.
III. QUESTIONS POSED BY THE UNITED STATES
1. Please explain whether and how Polish law provides protection for works, phonograms and
performances from other WTO Members, and whet her and how it does so on the basis of national
treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring
rights) and Article 9.1 (incorporating Berne Article 5(1)).  In particular, please explain how nationalIP/Q/POL/1
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treatment is afforded with respect to the distribution of blank tape and recording device levies under
Article 20 of the Polish Law of Copyright and Neighbouring Rights.
The Polish Act on Copyright and Neighbouring Rights grants protection to foreign entities
(members of the TRIPS Agreement) according to principles specified in international agreements towhich the Republic of Poland is a party.  With regard to copyright, Article 5, Item 4 is a regulation
referring to regulations of the conventions, whereas with regard to neighbouring rights (protection of
performers, producers of phonograms and videograms and broadcasting organizations) – regulations
of Article 90, Item 4, Article 96, Item 2 and Article 99, Item 2 of the Act on Copyright and
Neighbouring Rights.  Agreements relating to intellectual property are based on the principle of
national treatment.  This also refers to the TRIPS Agreement.  However, this document introduces in
Article 4 the principle of the "most-favoured-nation status" which has not been present in the previousinternational conventions concerned with intellectual property.  Polish law fulfils the above-
mentioned rules.
2. Does Poland apply the "rule of the shor ter term" to phonograms and performances from
other WTO Members?  If so, please explain how you justify such action under TRIPS Article 4.
Since the question posed is not sufficiently clear to us, please specify its scope more
precisely.
3. Please explain whether and how Poland protects against both the direct and indirect
reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in
the context of subscription or interactive services.
The Polish Law fulfils the requirements of Article 14.2 of the TRIPS Agreement.  According
to Article 94.2 of the Polish Law the "producer of a phonogram shall have the exclusive right to
dispose of and use the phonogram within the scope of its reproduction by a specific technique".  The
expression "reproduction by a specific technique"  which is used by the Polish regulation in this
context shall mean any technique, including the reproduction in a digital form.  Hence, in the case of a
digital recording and introduction of the phonogram to the network for the purpose of its offering
upon request, e.g. through subscription or interactive services, regulations contained in Article 94.2 of
the Law on Copyright and Neighbouring Rights shall apply.
4. Please explain whether and how Poland provides full retroactive protection to works,
phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6
and 70.2, each of which incorporate by reference or rely upon Berne Article 18.  Please give the date
back to which such protection extends with respect to each category of subject matter.
The Polish Law of 1994 introduced a 50-year protection period for phonograms, which is
counted from the date the given phonogram was produced.  Simultaneously, the scope of retroactive
protection of artistic performances and phonograms produced before the effective date of the Law was
limited.  Pursuant to Article 125, Section 1, Item 2 of the Law, artistic performances fixed earlier than
20 years before the effective date of the Law, i.e. before 23 May 1974, shall not enjoy the protection.
Respective provisions concerning phonograms are contained in Article 126, Section 1, Item 3 of theLaw.  The Republic of Poland is aware of the fact that such regulations are contradictory to those of
TRIPS Article 14.6 and that an amendment of the Polish Law is inevitable.  Undoubtedly, after the
lapse of the adjournment period, Poland will be obliged to provide "foreign" entities with protection
whose level will be equal to that granted by the TRIPS Agreement.  This is so because the TRIPS
Agreement will constitute a basis for the protection in Poland of "foreign" artistic performances andphonograms fixed earlier than 20 years before the Polish Law on Copyright and Neighbouring Rights
came into force.  Meanwhile, as mentioned in Item 1, throughout the adjournment period Poland is
released from the obligation to apply most provisions of the TRIPS Agreement, including Article 14.6IP/Q/POL/1
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As regards the period of protection, the Polish Law does not provide for any limitations
concerning retroactive protection.  Article 124 of the Law:
"1. Provisions of this Act shall apply to the works:
1) established for the first time after it has come into force;
2) whose copyright has not expired under the provisions hitherto in force;
3) whose copyright has expired under the provisions hitherto in force and which
under this Act shall continue to enjoy protection, except for the period 
between the expiry of protection under the previous Act and the date of this
Act coming into force.  This Act shall not infringe the ownership of copies of
works disseminated prior to the day of its coming into force.
"2. The provision of paragraph 1, subparagraph 3 above shall apply to works of foreign 
citizens permanently residing abroad upon the condition of reciprocity."
5. Please confirm whether and how Polish law provides rental rights for computer programs
and phonograms as required by TRIPS Articles 11 and 14.4.
The Polish Law of 1994 provides that authors (including authors of computer programs and
audiovisual works) shall have the exclusive right to use works and dispose of them on all fields of
exploitation.  Article 50 of the Law, in which such  fields of exploitation are enumerated, mentions
under Item 8 the rental of copies of a work.  This means that rental rights are granted to authors of all
works, and not only authors of computer programs and cinematographic works, as provided in the
TRIPS Agreement.  Hence, it can be stated that with respect to the scope of protection discussedabove, the Polish Law provides for protection which is reaching further than that provided by the
TRIPS Agreement.
6. Please explain whether and how Chapter 3, Section 2 of  Polish Law of Copyright and
Neighbouring Rights regarding "Economic Rights" provides the rights of translation, adaptation,
arrangement and alteration as required by Berne Articles 8, 12 and 14 (as incorporated byTRIPS Article 9.1).
Article 2, Section 1 of the Law on Copyright and Neighbouring Rights provides that a work
derived from another author's work (derivative work),  including in particular, translation, alteration
and adaptation thereof, constitutes the subject-matter of copyright without prejudice to the rights of
the original work.  The author of such a derivative work shall be granted copyright to his work in
accordance with regulations contained in Chapter 3, Section 2 of the Law.  However, pursuant to
Article 2.3 disposition and use of the derivative work shall be conditional upon the permission of theauthor of the original work, unless that author's economic rights to the original work have expired.
7. Article 24.1 of the Polish Law of Copyright and Neighbouring Rights permits the
retransmission of radio and television broadcasts by cable systems to multiple residences and
recipients so long as the retransmission is co mplete, simultaneous and without charge.  Please
explain how this complies with TRIPS Article 13 and Berne Article 11bis(2), as incorporated intoTRIPS by Article 9.1.
The regulation contained in Article 24, Section 1 of the Law is not a licence for cable
retransmission for commercial purposes.  The case described in this Article refers only to the fact of
receiving satellite programmes by an increased group of recipients (increased up to the statutory
limit).  Due to the fact that certain technical devices, which intensify the satellite signal (groupIP/Q/POL/1
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antennas) and transmit the signal by cable to a strictly specified group of recipients residing in one
multi-apartment building or in single family houses including up to 50 households, are used for this
purpose, this situation constitutes a form of the permitted use for private purposes.  On the other hand,
regulations concerning permitted use are always construed in connection with Article 35 of the Law.
This Article provides that permitted use must not violate the normal use of a work or infringe uponthe rightful interests of the author.  Since the technical terms and requirements concerning the
quantity, which are indicated in Article 24, Section 1 in connection with Article 35, are fulfilled,
Article 24, Section 1 is not contradictory to Article 13 of the TRIPS Agreement and Article 11 bis,
Section 2 of the Berne Convention (as incorporated by Article 9.1 of the TRIPS Agreement).
8. Article 28 of the Polish Law of Copyright and Neighbouring Rights provides an exception to
the reproduction right for libraries for works "unavailable on the market."  Article 29 permits
reproduction of works in creating anthologies for the purpose of  teaching and criticism, as well as acompulsory license to copy portions of works into  a collection for "teaching and scientific" purposes.
Please explain how these exceptions comply with TRIPS Article 13 and Berne Article 9(2), as
incorporated into TRIPS by Article 9.1.
Provisions of the Polish Law referred to in the question that you posed comply with
Article 13 of the TRIPS Agreement and Article 9 of the Berne Convention.  Limitations related to theexclusive rights provided for in Articles 28 and 29 are not in opposition to the normal use of works
and do not result in unjustified damage.
Permission, provided for in Article 28 of the Law, for making copies of works by libraries,
archives and schools has been limited to include exceptional cases when the following conditions
have to be fulfilled:
- pursuant to the Law single copies of works may be made;- published copies must be unavailable on the market; and
- copies must be made for the purpose of protecting the collections of works.
The "right of quotation" regulated under Article 2, Section 1, and the permissibility to
disseminate anthologies regulated under Article 2, Section 2, also comply with the Berne Convention
(Articles 9 and 10).
In the case of dissemination of anthologies, the Polish Law guarantees the author the right to
receive remuneration – Article 29, Section 3.
Article 35 gives a general indication how the described provisions should be construed.
Pursuant to Article 35 the "permitted use may not violate the normal use of a work or infringe upon
rightful interests of the author".  This provision is a repetition of the principle adopted in Article 9.2 of
the Berne Convention.
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