ALAI-Congress2012 – KYOTO
Questionnaire

Session 1－Developments of New Platforms
1)

How would you define “The Cloud” in your country?

In Poland, I suppose, the Gartner experts’ definition is treated as most popular. Gartner defines cloudcomputing as a style of computing in which scalable and elastic IT-enabled capabilities are delivered
as a service to external customers using Internet technologies.
2)

Is exploitation of works, performances, sound recordings and so on generally considered torelate to the Cloud?

By way of introductory explanation to the answers contained in this Questionnaire I would like topoint out that there are still no binding legal rules in Poland directly concerning cloud computing but
cloud services are already noticed by the representatives of public institutions and debated.
Therefore, even though the cloud computing is now becoming more and more popular in Poland,
exploitation of works, performances, sound recordings and so on in the Cloud is not clearly regulatedyet.
3)

Are there already commercial platforms established specifically designated for the Cloud or tosome extent related to Cloud uses? Can you foresee such new platforms to be established in thenear future?

As it was mentioned above – the Cloud Computing is becoming more and more popular in Poland.
There are already few platforms established specifically designated for the Cloud and I foresee that a
lot of new such platforms will be established in the near future. It will be both kinds of platforms –designed for B2C (business-to-consumer) and B2B (business-to-business) relations.
4)

How would you evaluate the Cloud’s importance to copyright for the next few years to come?

Currently there are non separate intellectual property law regulations in Poland directly addressing
copyright in the context of cloud computing. Therefore the general principles of intellectual property
law shall apply. However, in view of the expansion of this technology, in the next few years we willcertainly see a lot of development in this area that may be particularly important for cloudcomputing as for example: (i) data ownership in the Cloud; (ii) Internet Service Provider liability fordata/content generated by users; (iii) licensing; (iv) intellectual property protection of the materials
made available in the Cloud. It will require serious reform of the copyright law as due to current
territorial limitation of copyrights the Cloud poses serious issues from the perspective of the scope of
licenses, applicable law and jurisdiction.

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Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud”
Business?
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1)

Is there any case law to be found in your country and/or examples of (good) practices
concerning:
1.1) the right of making available to the public with reference to “Cloud” storage, retrieval anddissemination?

No, currently there is no case law or examples of good practices in Poland concerning the right ofmaking available to the public with reference to “Cloud” storage, retrieval and dissemination. The
presence of the Cloud services in Poland is still very fresh and in consequence the courts were notexposed yet to deal with it.
1.2) cloud providers that may be relevant to determine liability for the making available ofunauthorized content in the cloud environment?
No, currently there is no case law or examples of good practices in Poland concerning cloud provider
that may be relevant to determine liability for the making available of unauthorized content in thecloud environment.
2)

Is there case law on the technological protection measures and Electronic rights management
information in the “Cloud” environment?

No, currently there is no specific case law In Poland concerning technological protection measuresand Electronic rights management information in the “Cloud” environment.
3)

How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to “cloud”
developments?

Certainly the WIPO Internet Treaties of 1996 could form a starting point for regulating copyrights
and related rights also in the context of the Cloud as the Cloud to some extent is based on Internet
access and therefore bears some resemblance to Internet distribution of copyrighted materials.
Session 4– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”:
Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies are classified as“Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service” (IaaS).
Under the heading of “New Business Models for effective Protection of Copyright and Related rights
in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are of minor importance, since
they generally do not involve the use of copyrighted works of literature and the arts (issues of
copyright in software are not discussed at this congress).

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Note: This subsection focuses on successful business models of authors and rightholders who market
their copyrighted subject matter in the cloud either themselves or via a service provider (such as, e.g.
Apple’s “iTunes in the Cloud“), presumably by employing digital rights management (DRM) andperhaps also technical protection measures (TPM).
1)
In your country, what types of cloud services are offered and/or made available by authors
and rightholders offering their copyrighted content?
Situation in Poland in this area is generally similar to this in other member states of the European
Union and the basic offer of Cloud service providers covers such models as IaaS, PaaS, SaaS.
2)

What kinds of works are being offered in this way (e.g., musical works, literary works,
photographic works, audiovisual works, performances etc.)?

All kinds of works are offered in Poland in the Cloud, but currently majority of them are musicalworks (iTunes store, iCloud) but there are also services with photographic works, performances etc.
3)What rights do rightholders usually transfer to the providers of cloud services?

Usually the rightholders transfer to the providers of cloud service non-exclusive or exclusive license
for the making available to the public of their works or phonograms, by wire or wireless means, insuch a way that members of the public may access them from a place and at a time individuallychosen by them.
4)

What uses of copyrighted material are the users of such cloud services permitted?

In many cases the users of such services can refer to the uses covered by fair use, which exists in
Polish copyright law and is regulated in Articles 23 to 35 of Polish Copyright Law. In Poland there isdistinction between private and public fair use. Under private fair use a user can use the copyrighted
materials (e.g. record them, copy them etc.) for his own purposes or for people who are in close
relationship with him (family, close friends) under condition that it is not of commercial characterand is limited to single copies only. Public fair use is strictly regulated and in case of not fulfilling theprovisions of Polish copyright law the users may be held liable for infringement of copyrights.
5)

Can you give any figures regarding both royalty rates and total revenue authors andrightholders receive when their works are being offered in the cloud?

Currently in Poland there are no approved royalty rates specifically applicable to the works being
offered in the Cloud.
6)

What kind of TPM and DRM is used by these services?

I don’t have enough technical knowledge considering topic mentioned in the question to precisely
answer it.

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7)

Under the legislation of your country, to what extent are TPM protected against theirunauthorized circumvention?

Both TPM and DRM are protected against unauthorized circumvention in Poland and theircircumvention is subject both to civil and criminal liability.
8)

Is unauthorized circumvention of TPM a practical problem for those offering their content in
the cloud?

I don’t have enough technical knowledge considering topic mentioned in the question to precisely
answer it.
5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors and rightholders,
who build upon someone else’s copyrighted material and who – successfully or not – try not to be
subject to copyright liability. Examples are services that make use of the private copying exception(such as, e.g., personalized internet video-recorders) or which strive to benefit from an exception tolegal liability as an Internet Service Provider (such as, e.g., under the EU e-Commerce Directive). In
addition, strategies of authors who market their copyrighted works outside of copyright (such as, e.g.,under an open content or Creative Commons (CC) licence) can also be regarded as “copyrightavoiding” business models (although technically, they are based on copyright).
5.1 – Private copying in the Cloud1)

In your country, are there services – and if so, what kind of services are there - that offer its
users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”), platforms withgeneral public access (such as, e.g., FlickR) and mixed-forms (such as, e.g. Facebook) but alsoso-called internet-video recorders and possible other forms of private storage services.

In Poland all kind of popular private storage cloud services indicated above are available for users(e.g. Google Picassa, G-mail, Facebook, Flickr etc.). One of the most popular cloud services, which isonly Polish one is the www.chomikuj.pl (mainly IaaS).
2)

In legal terms, to what extent do the operators of such services benefit from its user’s private
copying exception? Are there any other exceptions under copyright law?
(note that general exceptions of legal liability are discussed under 5.2).

Under Polish law the operators of such services cannot benefit from its user’s private copying
exception and the normal rules of liability for hosting of user generated content under Polish Ecommerce Act shall apply. There are no specific exceptions for such operators under Polish copyrightlaw.

45.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability or
limited interpretations of the “making available” right1) To what extent do the operators of cloud services benefit from a narrow interpretation of the
making available (or communication to the public, or public performance) right?
It is impossible to give an answer, due to different views presented by the representatives ofdoctrine and the lack of jurisprudence.
2)

According to the law in your country, what is the legal status (primary or secondary liability contributory infringement or vicarious liability; aiding and abetting, other liability such as an
inducer, “Störer”) of the provider of cloud services with regard to copyright infringing
content uploaded by its users?

According to Polish Act on Rendering Electronic Services the Internet Provider will be liable for thematerial put into the cloud by users only when (i) ISP having knowledge about infringing character ofthe materials or (ii) having received reliable information about infringing character of the materials
had not blocked or deleted it immediately. There are some academics that are arguing in favour ofapplication of civil law liability applicable to aiding to the provided of the cloud but this is not awidely accepted position yet.
3)

In your country, do cloud service providers benefit from an exception to liability (such as, e.g.,under the EU e-Commerce Directive), and if so, to what extent (e.g., total exemption fromliability or exemption only from duty to pay damages)?
Please cite to and briefly describe statutory provisions and relevant case law.

As it was described in the question above, according to Polish Act on Rendering Electronic Services(which implemented the EU e-Commerce Directive) the Internet Provider will be liable for thematerial put into the cloud by users only when (i) ISP having knowledge about infringing character ofthe materials or (ii) having received reliable information about infringing character of the materials
had not blocked or deleted it immediately. So the exemption from liability in Poland is the same as in
the EU e-Commerce Directive and fulfilling the prescribed conditions results in total exemption of
the operator from liability.
4)

Also according to the law in your country, what duty of care is owed by cloud service
providers to monitor and eventually remove copyright infringing content?

In Poland ISPs or cloud service providers are not obliged to monitor or filter the content published by
the users. In accordance with the Polish case-law when introducing such monitoring the ISP or cloudservice provider takes a risk that if he fails to identify the infringing content and will not remove it,he may bear liability for such infringement. It is important to note however that currently in the
Polish Act on Rendering Electronic Services there is no official notice-and-takedown procedure. As it
was mentioned above in case of receiving reliable information about infringing character of thematerials ISP should block or delete it immediately. Recently the Polish Government officiallypublished the draft amendment to the Act on Rendering Electronic Services which provides for thethree steps notice-and-takedown procedure but these amendments are not adopted yet and it is notknown when and if they will become a binding law.
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5)

What evidence must a rightholder present in order to have infringing content removed?

The definition of reliable information about infringing character of the materials is still being
discussed in Poland. Nevertheless in case of receiving such reliable information the ISP should
undertake reasonable steps to verify whether it is in fact grounded and justified. In general therightholder has to substantiate his claims by proving that in fact he is the rightholder and by proving
circumstances which make him believe his rights were infringed. There are however no provisions
that would indicate any specific evidence that has to be presented by the rightholder to haveinfringing content removed.
6)

In your country, are there any contracts that have been concluded between cloud service
providers and rightholders concerning the use of copyrighted material by the users of thecloud services?

No, we are not aware of any such contracts between cloud service providers and rightholders in
Poland.
7)

In your country, what copyright-avoiding cloud services are operating successfully, and what
services that sought to be avoiding copyright have been banned and eventually shut down?

We are not aware of any of such case in Poland.
8)

In your country, are there any legislative changes under discussion as regards the liability ofservice providers who provide for cloud services? In particular, do you think that liability ofservice providers will be reduced or, rather, increased?

As it was mentioned above recently the Polish Government officially published the draft amendment
to the Act on Rendering Electronic Services which provides for the three steps notice-and-takedown
procedure. These amendments also provide for an exception of liability for search engine services
providers. These amendments are not adopted yet and it is not known when and if they will becomea binding law.
9)

Do you see any progress regarding filtering technology?

No, we do not see any particular progress regarding filtering technology in Poland.
5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”
1)

In your country, is there a noticeable use of “copyright-avoiding” business models, such as
Creative Commons (CC) or comparable open content licenses by rightholders with respect tocloud-based exploitations of works?

In Poland Open Source licences or CC licenses are used but are still rather a niche either used bydebuting authors who are more interested in attracting interest of the users than generating income
or by more underground artists who make it part of their ideology to share their works for free.
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2)

If so, in what areas (music, literature, audiovisual works, scientific works etc.) are suchlicenses most often used?

In Poland CC is most often used by music and graphic artists, to some extent also with regard toliterature. There are even some net labels or net publishers who operate purely on the basis of CC
model. There are also some software developers that make their products available on the basis ofOpen GNU licenses.
3)

Are there any figures available as to how the authors of such works generate income fromsuch cloud-based exploitations, and how much?

We are not aware of the figures. Usually the income is generated through ads displayed on web
pages where such works are made available.
4)

Also in your country, what legal obstacles are authors faced with when making use of open
content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award damages forunauthorized commercial use of works that have been made available only for noncommercial use; collecting societies refusing to represent authors who want to market someof their works under a CC-licence; the exclusion of CC-authors from receiving remuneration
under a private copying regime etc.

Yes, there are some legal obstacles with regard to use of open content and CC licenses, in particularwith regard to their validity (under Polish law assignment of rights or exclusive licenses has to be in
the written form under the pain of nullity) as well as to their enforceability if they deviate seriously
from the statutory regulations. In general however if the conditions of a given open content or CC
license are clear, there should be no problem with enforcement.
Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment
1)

Does your country have specific private international law rules for copyright in particular and forintellectual property in general or are there general rules of private international law that apply
in these circumstances? In particular do your country's rules of judicial competence (personal
jurisdiction) make it possible to sue a foreign intermediary who makes it possible forinfringements to occur or to impact in the forum? Which law applies in such instances? Would
the law applicable to the primary infringement apply? Would the law of the intermediary's
residence or place of business apply?

In Poland there are some specific private international law rules which apply for intellectual property
law. According to article 35 of Polish Civil Code Procedure the court having jurisdiction over the delict
claim is the court in which circuit the event causing the damage occurred. Moreover in accordancewith article 46 paragraph 3 of Act of 4 February 2011 Private International Law the protection of
intellectual property shall be governed by the law of the country under which the protection isclaimed. These Polish regulations are also compliant with European Union regulations, especially
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on thelaw applicable to non-contractual obligations (Rome II). The article 8 “Infringement of intellectual
property rights” stated that the law applicable to a non-contractual obligation arising from an7

infringement of an intellectual property right shall be the law of the country for which protection isclaimed. This kind of proceeding with the infringements of intellectual property rights isconsequently confirmed in the Court of Justice of the European Union jurisprudence.

2)

Does your national collective rights management organisation grant multi-territorial licences
and are there cloud-specific licence models when it comes to collective licensing? If so, does thisinclude rules on cross-border contracts (including jurisdiction and choice of law aspects)?

No, national collective rights management organizations are not granting multi-territorial licenses
and currently they do not have any cloud-specific license models when it comes to collective
licensing. This may however change in the future as these organizations are becoming more andmore aware of the challenges to the traditional collective licensing model that are posed by cloudservices.

“Contribution prepared by Filip Lukaszewicz under the direction of dr Teresa Grzeszak, University of
Warsaw”.

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