RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/POL/1/Add.1
12 September 2000
(00-3525)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON COPYRIGHT AND RELATED RIGHTS
POLAND1
Addendum
The present document reproduces further questions put to the delegation of Poland in relation
to its legislation on copyright and related rights and the responses given.
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I. RESPONSES TO QUESTIONS POSED BY CANADA
1. 2We understand that draft legislation as well as amendments to existing intellectual
property legislation were submitted to Parliament to modify Poland's intellectual property
regime.
(a) Have these amendments and draf t legislation been implemented?
(b) If not, when are they likely to be implemented?
The draft law on the amendment of the Law on copyright and related rights was accepted by
the Parliament on 9 June 2000.  It is expected to be signed by the President by the end of this month.
The main objective of the amendments to the Act is harmonization of the Polish legislation
with the laws of the European Communities in the sphere of copyright and neighbouring rights.  The
implementation covers all the Directives applicable in that field in the European Union.  The
introduction of some of the postulated amendments will also fulfil obligations stemming from the
TRIPS Agreement.
In order to acquire full adaptation of Polish copyright law to the above mentioned
international legal acts, the following significant changes have been made in detailed issues:
1. Introduction of a "secondary protection" for works which at the time of "primary
protection" were not legally published or performed in public.  In such a situation, the first
publisher or performer of such a work will be granted a subjective right similar to the author's
economic rights.  Such a right will exist for 25 years after the date of the first legalpublication of public performance;
                                                     
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,IP/N/1/POL/2 and IP/N/1/POL/C/1 and 2.
2 See footnotes 2 and 4 of document IP/Q2/POL/1.IP/Q/POL/1/Add.1
Page 2
2. Introduction of protection of phonograms and artistic performances realised before
1974 but not more than 50 years (it concerns the period 1949-1974).  Under the provisions of
the existing Act, such recordings or performances are not accorded any protection.  Such a
limitation prevented protection of popular performances (and their recordings), distorted the
market of recordings and performances and infringed interests of artists, whose recent popularachievements could be used without their approval and financial compensation.  It has to be
noted that the existing provisions were adopted with the assumption of their temporary nature.
Adoption of those provisions in 1994 was justified by the necessity to spread over time the
economic effects of the protection of artistic performances and producers of phonograms and
videograms, introduced in the present Act.
3. Introduction of modifications concerning:
- the method of establishment of protection of author;- adoption of the principle of primary acquisition of author's economic rights 
by the authors;
- protection of computer programmes;
4. Removal of privileged treatment of public radio and television organizations as
regards payments for broadcasting of artistic performances recorded on phonograms before23 May 1994;
5. Extension of period of protection of works from 50 to 70 years;
6. Introduction of a possibility to lodge and objection concerning a reprint;
7. To the provision on protection of author's economic rights, there has been added a
possibility to use the measures of author's economic rights protection also in cases of:
• removal or by-passing of technical protections against access, reproduction or
dissemination of a work;  and
• unauthorized removal or modification of any information that identifies the
work, the author, the subject of copyright to the work or information aboutthe terms of exploitation of the work;
8. There has been also added the article 7T, which enables the entitled person to demand
the user of a computer programme to destroy technical means used only to facilitate illegal
removal or by-passing of technical security protections.
Amendments in penal provisions of the Copyright Act stem from several drawbacks of the
existing solutions, disclosed in the four years of ap plication of the Act.  The main drawback consists
in an excessive application of prosecution on private charges.  That solution has been replaced by apublic claim procedure.  Prosecution on motion of the injured person has been reserved for minor
offences.
It has also been ensured that relevant organization for collective administration of copyright
and neighbouring rights may act as the injured person.  This will be especially important in the cases
of mass infringement of copyright or neighbouring rights, concerning many works or objects ofIP/Q/POL/1/Add.1
Page 3
neighbouring rights, when such infringements will concern the sphere of collective administration of
rights to works or objects of neighbouring rights.
In order to eliminate incoherence of the system, the existing sanctions have been rendered
more severe and corresponding to the ones provided in the Penal Code for similar crimes.
On the whole, the proposed changes will facili tate hampering of infringements of copyright
and will provide a balanced protection of works, artistic performances, phonograms and videograms.
The draft Act also provides a possibility of appointment by the President of the Council of
Ministers of a team to counteract infringements of copyright and neighbouring rights.  The team is to
be appointed on application of the Minister responsible for culture and protection of national heritage.
Appointment of such a team will enable synchronisation of organizational activities, especially to
quickly react to the ever-changing situation on the market of copyright and neighbouring rights.
The draft Act does not infringe rights acquired before its taking effect.  In particular, it will
not infringe the right of ownership of copies legally produced in that period.  The rights covered by
the Act are secured by the obligation to declare the copies produced before the Act's taking effect,
which may be legally sold after that date, within the next 12 months.
2. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61? 3
Acts wilful offences of infringement of copyright and committing them on commercial scale
have their qualified forms.  Threat of punishment for such offences is higher.
In the Copyright Act there are three Articles, which read as follows:
Article 116
1. Whoever, without authorization or against its terms and conditions,
disseminates someone else's work, artistic performance, phonogram, videogram orbroadcast in the original or derivative version, shall be liable to a fine, restriction of
liberty or deprivation of liberty of up to 2 years.
2. If the perpetrator commits the act specified in paragraph 1 above in order to
gain material benefits, he shall be liable to deprivation of liberty of up to 3
 years.
3. If the perpetrator makes the offence specified in paragraph 1 above a regular
source of income or organizes or manages a criminal activity, as specified in
paragraph 1, he  shall be liable to deprivation of liberty from 6 months up to 5 years.
4. If the perpetrator of the act specified in paragraph 1 above acts
unintentionally, shall be liable to a fine, restriction of liberty or deprivation of libertyof up to 2 years.
Article 117
1. Whoever, without authorization or against its conditions, fixes or reproduces
someone else's work in the original or derivative version, artistic performance,
                                                     
3 As regards the part of this question dealing with trademark counterfeiting, see document
IP/Q2/POL/1.IP/Q/POL/1/Add.1
Page 4
phonogram, videogram or broadcast, and gives his consent to its dissemination, shall
be liable to a fine, restriction of liberty or deprivation of liberty of up to 2 years.
2. If the perpetrator makes the offence specified in paragraph 1 a regular source
of income or organizes or manages a criminal activity, as specified in paragraph 1above, he shall be liable to deprivation of liberty of up to 3 years.
Article 118
1. Whoever, in order to gain material benefit purchases, assists in the sale of,
accepts or assists in concealing objects being carriers of a work, artistic performance,
phonogram, videogram disseminated or reproduced without authorization or againstits conditions, shall be liable to a fine, restriction of liberty or deprivation of liberty of
up to 2 years.
2. If the perpetrator made the crime specified in paragraph 1 above a permanent
source of income, or organizes or manages a criminal activity, as specified inparagraph 1, he shall be liable to deprivation of liberty of up to 3 years.
The new Act has amended Article 118 which now reads as follows:Article 118
1. Whoever, in order to gain material benefit, purchases or assists in selling or
accepts or assists in concealing objects being carriers of a work, artistic performance,
phonogram or videogram disseminated or reproduced without authorisation or against
its conditions shall be liable imprisonment from 3 months to 5 years.
2. If the perpetrator made the crime specified in paragraph 1 a permanent source
of income or organises or manages criminal activity, as specified in paragraph 1, shall
be liable imprisonment from 1 to 5 years.
3. Where on the basis of circumstances the perpetrator of the crime specified in
paragraph 1 or 2 should and could presume that the object has been obtained through
an illegal act, he shall be liable to a fine, restriction of liberty or imprisonment up to
2 years.
3. What protection does your copyright legislation afford to foreign works?
The Polish Act on Copyright and Neighbouring Rights grants protection to foreign entities
according to principles specified in international agreements to which The Republic of Poland is a
party.  Article 5 of the Polish Copyright Act states as follows:
The provision of this Act shall apply to works:1) whose author or co-author is a Polish citizen;  or2) which have been published for the first time within the territory of the
Republic of Poland or simultaneously within such territory and abroad;  or
3) which have been published for the first time in Polish;  or4) whose protection is provided for by international agreements.IP/Q/POL/1/Add.1
Page 5
II. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES4
A. C OPYRIGHT AND RELATED RIGHTS
1. Please provide a status report on the copyright legislation now pending in Parliament in
Poland, including a brief explanation of the changes it will make to Poland's copyright regime.
The draft law on the amendment of the law on copyright and related rights was accepted by
the Parliament on 9 June 2000.  It is expected to be signed by the President by the end of this month.
The main objective of the amendments to the Act is harmonization of the Polish legislation
with the laws of the European Communities in the sphere of copyright and neighbouring rights.  The
implementation covers all the Directives applicable in that field in the European Union.  The
introduction of some of the postulated amendments will also fulfil obligations stemming from theTRIPS Agreement.
In order to acquire full adaptation of Polish copyright law to the above-mentioned
international legal acts, the following significant changes have been made in detailed issues:
1) Introduction of a "secondary protection" for works which at the time of "primary
protection" were not legally published or performed in public.  In such a situation, the first
publisher or performer of such a work will be granted a subjective right similar to the author's
economic rights.  Such a right will exist for 25 years after the date of the first legal
publication of public performance;
2) Introduction of protection of phonograms and artistic performances realised before
1974 but not more than 50 years (it concerns the period 1949-1974).  Under the provisions of
the existing Act, such recordings or performances are not accorded any protection.  Such a
limitation prevented protection of popular performances (and their recordings), distorted themarket of recordings and performances and infringed interests of artists, whose recent popular
achievements could be used without their approval and financial compensation.  It has to be
noted that the existing provisions were adopted with the assumption of their temporary nature.
Adoption of those provisions in 1994 was justified by the necessity to spread over time the
economic effects of the protection of artistic performances and producers of phonograms and
videograms, introduced in the present Act;
3) Introduction of modifications concerning:
- the method of establishment of protection of author;- adoption of the principle of primary acquisition of author's economic rights 
by the authors;
- protection of computer programmes;
4) Removal of privileged treatment of public radio and television organizations as
regards payments for broadcasting of artistic performances recorded on phonograms before
23 May 1994;
5) Extension of period of protection of works from 50 to 70 years;
                                                     
4 These should be considered follow-up questions to the review of Poland's legislation on copyright and
related rights conducted in 1998 (document IP/Q/POL/1).IP/Q/POL/1/Add.1
Page 6
6) Introduction of a possibility to lodge and objection concerning a reprint;
7) To the provision on protection of author's economic rights, there has been added a
possibility to use the measures of author's economic rights protection also in cases of removalor by-passing of technical protections agains t access, reproduction or dissemination of a
work, and unauthorised removal or modification of any information that identifies the work,
the author, the subject of copyright to the work or information about the terms of exploitation
of the work;
8) There has been also added the article 7T, which enables the entitled person to demand
the user of a computer programme to destroy technical means used only, to facilitate illegalremoval or by-passing of technical security protections.
Amendments in penal provisions of the Copyright Act stem from several drawbacks of the
existing solutions, disclosed in the four years of ap plication of the Act.  The main drawback consists
in an excessive application of prosecution on private charges.  That solution has been replaced by apublic claim procedure.  Prosecution on motion of the injured person has been reserved for minor
offences.
It has also been ensured that relevant organization for collective administration of copyright
and neighbouring rights may act as the injured person.  This will be especially important in the casesof mass infringement of copyright or neighbouring rights, concerning many works or objects of
neighbouring rights, when such infringements will concern the sphere of collective administration of
rights to works or objects of neighbouring rights.
In order to eliminate incoherence of the system, the existing sanctions have been rendered
more severe and corresponding to the ones provided in the Penal Code for similar crimes.
On the whole, the proposed changes will facili tate hampering of infringements of copyright
and will provide a balanced protection of works, artistic performances, phonograms and videograms.
The draft Act also provides a possibility of appointment by the President of the Council  of
Ministers of a team to counteract infringements of copyright and neighbouring rights.  The team is tobe appointed on application of the Minister responsible for culture and protection of national heritage.
Appointment of such a team will enable synchronization of organizational activities, especially to
quickly react to the ever-changing situation on the market of copyright and neighbouring rights.
The draft Act does not infringe rights acquired before its taking effect.  In particular, it will
not infringe the right of ownership of copies legally produced in that period.  The rights covered by
the Act are secured by the obligation to declare the copies produced before the Act's taking effect,
which may be legally sold after that date, within the next 12 months.
2. Please explain in detail how US and other foreign sound recordings are afforded a point
of attachment qualifying them for protection in Poland.
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 to
the which the Republic of Poland is a party.  With regard to Article 96 "provisions of the Act shall
apply to phonograms whose producer has its residence or seat within the territory of the Republic ofPoland, or whose protection results from international agreements."IP/Q/POL/1/Add.1
Page 7
3. Please explain in detail how Poland implemen ts its obligations under Article 14.6 of the
TRIPS Agreement to provide protection to sound recordings that are still protected in their
country of origin and that have not had a full term of protection in Poland.
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 the retroactiveprotection of phonograms produced before the effective date of the Law was limited.
The draft law introduces protection of phonograms and artistic performances realised before
1974 but not more than 50 years (it concerns the period 1950-1974).  In this way the Polish Law
fulfils the requirements of Article 14.6 of the TRIPS Agreement.
__________