To Respect and Get Inspired – Copyright in Folk Art and Ethno Design

by Piotr Łada

I. Introduction

The panel discussion “To Respect and Get Inspired – Copyright in Folk Art and Ethno Design” took place on the 6th of November 2014 as part of the conference “Patterns of Europe – The Cultural Heritage and Modern Design.” The panel was chaired by Piotr Łada and included the following participants: Marta Wróbel (Folkstar company), Anna Staniszewska (Association of Folk Artists), Karolina Wanda Rutkowska and Jacek Rutkowski (Museum of Buttons in Łowicz, The Polish Association for the Protection of Intellectual Property Rights of Folk Artists „Łapta złodzieja!” – “Catch the Thief!”), Julia Babińska (lawyer). The panel discussion was focused on the problems related to copyright laws in folk art and ethno design, infringement of intellectual property rights, and also aimed to present methods that can be used to effectively protect the rights of folk artists.

Copyright in folk art and ethno design has become a prominent issue in view of the fact that commercial and industrial companies use the works of folk artists on their products, as well as in advertising, promotion and selling campaigns. Despite the fact that folk art constitutes common cultural heritage and invokes general ideas, characteristics and patterns, it is erroneously assumed to be outside the remit of copyright and industrial property law. Such assumption is against the contemporary regulations and violates the right of folk artists, thus leads to lawless usage of art objects. The on-going legal disputes indicate that a lot is still to be done in terms of legal protection of folk art and ethno design and that it is necessary to educate artists and art consumers and raise their legal consciousness, which was one of the aims of the debate “Patterns of Europe – The Cultural Heritage and Modern Design.”

II. Folk Art and Ethno Design in the Eyes of the Panel Participants

The term folk art traditionally comprises several different artistic activities (e.g. handicraft, music, dance, poetry) of local community, especially rural one, which are intended for personal use and needs, as well as made by means of a composition, pattern, form and design characteristic for a given region (1). It is worth noticing, however, that the contemporary meaning of folk art, which stems from its thriving commercialization and popular use, is approximating design that involves emphasising its appropriable and industrial patterning, including ethno design. Despite the contemporary terminology issues concerning folk art and ethno design, both terms are indisputably connected to copyright and industrial property law. Copyright is applicable to any work having an individual, original character, and achieved by means of various means of expression in spite of its value, intended use and form of expression, including works of folk art and ethno design.

Counsellor Julia Babińska has emphasised that every work of folk art is protected by copyright, irrelevant of whether the artist has professional education or not (so-called amateur art). In a similar vein, anonymous art is fully under copyright law, even though the further identification of creator or proving authorship poses difficulties of evidential nature. Jacek Rutkowski has noticed that proving authorship in folk art is only possible when based on specific characteristics of a given creator’s artistic output, yet this requires specialist knowledge and long-term experience. According to Rutkowski, the increasing importance of the issue of copyright in folk art is related to the progressing commercialization of such art, also in the field of industrial design. Furthermore, the development of Internet fosters the use of folk art, which often involves the breakage of copyright, but at the same time enables disclosure of such infringement.

The problem of ubiquitous copyright infringements in folk art has also been raised by Karolina Rutkowska (by pointing at the widely publicized dispute about the coin used to celebrate the Polish presidency in EU). She has observed that such infringements have unfavourable influence on authors’ motivation, and can cause significant consequence for their financial well-being, since folk art is often their main source of income. Rutkowska further pointed that the legal awareness of folk artists is steadily rising, which is connected with the fact that art itself is being transferred from the sphere of personal use (e.g. domestic, ornamental) to commercial exploitation. Nonetheless, she has mentioned the considerable technical and financial limitations of authors when it comes to the protection of their rights. In this context, Marta Wróbel has added that in many cases folk artists remain unaware of the fact that their works are used commercially on country scale. According to her, commercial use of folk art should be based solely on individual creative output or by signing agreements with authors (e.g. license agreement)

Anna Staniszewska has also commented on the necessity of legal use of folk art by signing legal agreements with authors, although she emphasized that the scale of infringements has increased because of commercialisation and the Internet. In her opinion, though most folk art works are not purposefully signed, the authors themselves can easily recognize the authorship of others by looking at specific characteristics (e.g. pattern, line, colour). Legally regulated use of folk art is, according to Staniszewska, not only in compliance with common law, but also manifests the respect for authors, while the existence of organizations associating authors makes it easier to establish contact between the user and the copyright holder. Marta Wróbel has added that in legal use of folk art for commercial purposes, the lack of signature on folk works could also involve the protection of business trade secret. Yet, the panellist has remarked that the original works can be labelled by certificates of authenticity which allow to differentiate traditionally made folk art work from industrial design based on folk art.

To append on the issue of signing folk art works, Jacek Rutkowski has noticed that despite the lack of signature, the determination of authorship is fairly easy for a specialist, especially with the access to museum collections, publications or basing on work experience. Rutkowski pointed that the infringing persons often demand the proof of authorship as a line of defence, even though such proof is irrelevant in view of the breakage of copyright law. Having the legal experience in helping authors, Karolina Rutkowska has illustrated that the infringing parties adopt a defence strategy which either involves asserting that the work of art has been created by other persons (e.g. graphic designers of the company) or is lead by incorrect reasoning that folk art is cultural heritage and thus individual works are not protected by copyright laws. The panellists have unanimously agreed that the best remedy for this situation would be the education on the subject of folk art and copyright law for authors, art consumers and persons who professionally deal with the issues of copyright (e.g. courts, prosecutors’ offices). It has also been recommended to archive works of art and creative process (e.g. photographic), and participate in authors’ associations which offer professional help and representation.

III. Folk Art and Copyrighted Work

The definition of the object of copyright was included in Art. 1 § 1 of Act on Copyright and Related Rights – the object of copyright shall be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work) (2). This definition can cause interpretative difficulties, thus in Art. 1 § 2 of Act exemplary objects of copyright have been stipulated: works expressed in words, mathematical symbols, graphic signs (literary, journalistic, scientific and cartographic works and computer programs); artistic works; photographic works; string musical instruments; industrial design works; architectural works, architectural and urban planning works as well as urban planning works; musical works as well as musical and lyrical works; theatrical works, theatrical and musical works as well as choreographic and pantomime works; audiovisual (including film) works (3). The above specification is merely representative, thus other objects of art which have not been mentioned in the Act can be included under copyright (e.g. folk art, embroidery, cut-outs), while the initially-mentioned general definition is of basic importance.

In order to be determined as the object of copyright, a piece of work must satisfy three basic conditions, that is (i) the work is the result of a human being’s activity (e.g. art created by animals is, theoretically, not protected), (ii) the work is of individual and original nature, and (iii) the work has been established (its form of expression is perceptible by persons, e.g. a draft on a piece of paper). The second condition is relatively easy to fulfill, and can be achieved by simple layout or assortment of particular elements (e.g. graphic design). The above is indicated by the fact that Polish judicature considers assortment of posters and announcements (4), graphic design of a newspaper – mockups (5), projects of technical documentation, drafts and plans (6), or even workplace safety instruction (7) as a copyrighted work. In the context of folk art it is necessary to point out that although its works are characterized by specific composition, form or arrangement, usually traditional for a given region, the folk art works which can be determined by specific authorship and individual, creative character (8) are fully under copyright.

While evaluating the character of material one needs above all observe whether the final form of a piece of work is determined by factors irrespective of the author (e.g. precise guidelines of the person ordering), or whether some form of artistic creativity occurs. In such situation, when the activities of a given person simply constitute technical duty and the result is foreseeable, one deals with material protected by copyright (e.g. a TV programme). On the other hand, when the final form of a piece of work depends on invention, idea, and individual approach of the author, a possible copyrighted work is achieved (e.g. an article on a given subject). In practice, considering the low threshold of required conditions for art work, it is legitimate to assume that a given material is under copyright. Copyrighted works especially include: photographs, graphics, press articles, whereby copyright laws cover both material which was created and released in paper (e.g. magazine), and those in electronic, online form. In the case of folk art, which admittedly resorts to some specific characteristics, it is undisputable that folk art works are individual and original works and are protected by copyright.

IV. Copyright Laws

The current copyright regulations contain a certain legal dichotomy, i.e. they stipulate between author’s economic right concerning the financial and economic sphere, and the author’s moral right which relates to non-economic, spiritual link between the author and the work. The totality of these regulations constitutes a unity of rights which guarantee that the third party is prohibited from drawing benefits from a copyrighted work and infringing on personal rights (i.e. negating authorship or making false claims to authorship) without proper legal basis. According to Art.17 of Act, the author shall have an exclusive right to use the work and to manage its use throughout all the fields of exploitation and to receive remuneration for the use of the work (9).

The author’s economic rights involve all rights of the author related to commercial exploitation of the work. In legal doctrine, the above-mentioned ensemble of economic rights is compared to proprietary right and, in consequence, designated as the author’s monopoly (10). In result, the author has exclusive economic right to exploit the work, while the third party can be authorized to use the work only after obtaining proper legal basis (e.g. signing an agreement or adhere to fair use of copyrighted works). In the case of agreements with folk artists, the use of copyrighted works by the third parties is usually based on license agreements.

The dissemination of copyrighted works occurs by specific means (e.g. reprint in a newspaper, appearance in the Internet, copying), the so-called fields of exploitation. The catalogue of those fields is unlimited both due to technological development (e.g. the Internet, satellite TV), and the possibility of defining the fields of exploitations by the parties involved (e.g. use by the territory, time, medium criteria). As far as folk art is concerned, its dissemination can apply to the Internet, copying (gadgets, overprints), exhibitions, as well as selling copies of works (e.g. certified original works), or other uses by the author or the third parties by the author’s permission.

V. Terms of Author’s Economic Rights

The author’s economic rights have been introduced in order to protect the financial interests of the rightholder, so that the financial benefits would secure his or her further creative output. After the lapse of the term of the author’s economic rights, the protection of a work becomes economically ineffectual. As a consequence, the legislatures, both in and outside Europe, have established a legal rule stating that economic rights are not immutable, but they expire after a lapse of a given time. In Poland, the author’s economic rights, in principle, expire after the lapse of 70 years, even though in some cases this period is shorter (e.g. the term of protection in the case of artistic performances is 50 years) (11). The basic principle states that the lapse of the 70-year term is calculated from the death of the author, whereby the time of the expiration period starts after a year since the event (e.g. the author has died on the 5th of August 1999 – the time of the expiration period is calculated from the 1st of January 2000). Some exceptions to the term of author’s economic rights include audio-visual works and joint works.

In this matter it is best to cite directly from Art. 36 of Act: subject to exceptions provided for in this Act the author’s economic rights shall expire after the lapse of seventy years: 1) from the death of the author, and in case of joint works – from the death of the coauthor who has survived the others; 2) in the case of a piece of work the author of which is not known – from the date of the first dissemination, unless the pseudonym does not raise any doubts as to author’s identity or if the author disclosed his/her or her identity; 3) in the case of a piece of work with respect to which the author’s economic rights are, under statutory law, enjoyed by a person other than the author – from the date of dissemination of the work and if the work has not been disseminated from the date of establishment thereof; 4) in the case of an audio-visual work – from the death of the last of the following: the main director, the author of screenplay, author of dialogues, composer of music written for the audio-visual work (12).

In the case of folk art works established by individual authors, the author’s economic rights will expire after the period of 70 years since the death of the author. It should be noticed, however, that in the cases of an extended period of time, determining authorship of a folk art work could be objectively impossible. In such cases one should apply the rule that the expiration time of the author’s economic rights is to be calculated from the date of the first dissemination of a folk art work (e.g. reproduction in an album or newspaper, exhibition). One should distinguish hereby between the decision of a folk artist, the exploitation of a piece of work in an anonymous form, and the actual incapability of determining authorship; since the dissemination of a piece of work of which author is not known does not exclude from the obligation to respect copyright laws.

VI. Author’s Moral Rights

One should differentiate between the author’s economic rights and the sphere of his or her non-material interests, i.e., the author’s moral rights. The catalogue of these rights has been stipulated in Art. 16 of Act, i.e., the right (i) to be an author of the work; (ii) to sign the work with the author’s name or pseudonym, or to make it available to the public anonymously; (iii) to have the contents and form of the author’s work inviolable and properly used; (iv) to decide on making the work available to the public for the first time; (v) to control the manner of using the work (13). The author’s moral rights link the author and his or her work in such a durable manner that it is not possible to disclaim them; in theory they are permanent and they do not expire (after the death of the author, the moral rights are executed by his or her legal successors). One of the most commonly applied moral rights of folk artists is the decision to make the work available to the public anonymously or to sign the work with her or her pseudonym.

Another important right is the prerogative to have the contents and form of the author’s work inviolable (so-called integrity of work). Any change in the form of a piece of work (e.g. cut-outs) which results in modification thereof (e.g. introducing new elements, the change of proportions) can be deemed as infringement on the author’s moral rights in the sphere of the integrity of work. In many cases, the illegal use of folk art involves not only exploiting works in their original form, but also introducing changes and modifications, or compiling a few previously established folk art works. The above can lead to both infringing the author’s economic rights and moral rights in terms of respecting the right to authorship and the so-called integrity of work.

VII. Copyright Notice

Copyright notice is a form of notice placed on a work in order to inform that such work is protected by copyright. The note is either a written phrase (e.g. all rights reserved), or the symbol © or similar. The current legal regulations do not require the use of copyright notice for the work to be protected – a work is always legally granted copyright status. The use of the notice is preventive, since it informs potential users that a work is under copyright (which can have influence on the amount of possible claims on account of the infringement of copyright). It should be mentioned that there is a diversity of legal systems in which potential users of a work exist. Therefore, it is recommended to use copyright notice even without a precise, mandatory legal requirement to do so. It should be noted that copyright is granted irrelevant of any provisions and annotations placed on a work, i.e. at the moment of establishing a piece of work by a folk artist, though additional information can influence the effectiveness of defense (e.g. the presentation of the author’s works on the Internet with copyright annotation).

VIII. Works for Hire

It is common legal principle that copyright laws are granted to the author, i.e., the person who has established a piece of work (e.g. has written a book). This principle is modified in relation to the so-called works for hire, i.e. created by an employee within the scope of his or her duties. The above is specified in Art. 12 of Act, according to which unless this Act or a contract of employment states otherwise, the employer, whose employee has created a piece of work within the scope of his/her duties resulting from the employment relationship, shall, upon acceptance of the work, acquire the author’s economic rights within the limits resulting from the purpose of the employment contract and the congruent intention of the parties (14). For the author’s economic rights to be transferred to the so-called work for hire, the work needs to be accepted by the employer. The date of the acceptance of a work also designates the moment of acquiring the author’s economic rights. The conditions of the acquirement of rights can be modified in the employment contract – otherwise legal regulations will be applied: if, within six months from delivery of the work, the employer fails to notify the author of its rejecting or conditioning the acceptance upon making specific changes within an appropriate time for making such changes, it shall be considered that the work has been accepted without objections. The parties may agree on a different time limit (15).

In the case of folk art, the situation of employment does not occur, thus there are no grounds to use the term “work for hire.” It should be noted, however, that the commercialization of folk art is accompanied by the flourishing design industry where works for hire could be established as part of employment contract. In all other cases, the link between the author and the user is based on contracts which transfer the author’s economic rights or on license agreements, while in the cases of commission also on contract for a specific work (e.g. commission for a specific design). From the point of view of the author of folk art, license agreements for the use of existing works are the most beneficial forms of contract.

IX. The Definition of the Author

The current regulations in Poland introduce a basic rule that the owner of the copyright shall be the author unless this Act states otherwise (16). In result, the author is designated as the person who has established a piece of work (e.g. an illustration). It is also presumed that the person visible on a copy a work (e.g. book) as the author is also the creator of a work. Such presumption can obviously be refuted in court proceedings, but at least in principle it might help to determine the authorship by the third parties, though possibly not without complications.

It might occur that a piece of work is established by more than one person; in such case one deals with the so-called joint work. In order for such a work to be established, the authors have to reach an agreement as to the establishing of a given work, at least impliedly (17). Depending on the input and the structure of such work, one can differentiate between inseparable co-authorship and interdependent co-authorship (18). This division is based on whether the joint collaborations can be exploited separately (e.g. individual articles in a collective work), or whether individual contributions are blended (one article edited by a few persons).

Repeatedly, it is problematic to determine the scope of individual contributions of the authors. Because of that, it presumed that the amounts of share are equal (19). Similarly as in the case of authorship, the legal rules as to determining the amounts of share can be refuted in court proceedings. The consent of all co-authors is required in order to exercise copyright with respect to the whole work, unless a given part of work possesses autonomous meaning, in which case each of the co-authors may individually exercise his or her copyright (20).

It should be underlined, though, that protection by copyright is granted irrelevant of whether the artist has professional education (e.g. Academy of Fine Arts) or not (so-called amateur art). Other insignificant factors include the age of the author (e.g. an underage author), or his/her legal capacity, though in such cases copyright laws are executed by the author’s statutory representatives. Furthermore, it is irrelevant whether the author holds membership in author’s associations and/or copyright collecting agencies, even though such membership can positively influence the development of the author’s career, and later the legal protection of its effects.

X. Orphan Works

In some cases it is impossible to determine the author, or contact him/her or his/her inheritors. Such categories of works are called orphan works. Currently in the European Union, authorities work on regulating the legal status of such works, while in Poland, the law does not regulate the rules of use of orphan works. It is worth noticing that the failure to determine the author (the rightholder and his/her inheritors are uncontactable) does not allow a potential user to exploit such works (without signing proper agreement). In such situations, the last option is an attempt to pursuit the author, or eventually, resort to a copyright collecting agency so that the agency could represent the unknown author until the authorship is established (such situations occur, although in practice they do not cause practical difficulties). The above indicates that in the case when the term of the author’s economic rights has not expired, and establishing authorship has proved difficult (e.g. the author unknown, the decision on anonymous dissemination of works), the above does not exempt the user from the obligation to respect the copyright.

XI. Fields of Exploitation

The use of work occurs by specific means (e.g. publication online, lease) – those means have been designated as fields of exploitation. The main of those fields have been stipulated in Art. 50 of Act on Copyright and Related Rights, whereby it is not necessary to use those specific terms to describe the fields (e.g. it is possible to state that the use involves a publication on a given portal for a period of one month). The fields of exploitation can be particularized according to the subject criterion (e.g. works of participants of a workshop), the object criterion (e.g. articles), the time criterion (e.g. for a period of a year), or by territory criterion (e.g. on the territory of the Republic of Poland). In principle, it is more beneficial for the copyright acquirer that the fields are interpreted as extensively as possible, while for the author that they are interpreted narrowly, which allows the author to commercially exploit the work in many ways.

XII. The Transfer of Author’s Economic Rights

The transfer of author’s economic rights to another person occurs under general principles of inheritance (the author’s death), or on the basis of an agreement, i.e. an agreement which transfers author’s economic rights or license agreement (exclusive, or nonexclusive license). The agreements concerning author’s economic rights are subject to general principles of civil contractual relationships, but they are characterized by some differences. Every agreement should include page numeration, work trademark, the designation of type and nature of agreement (license agreement or transfer contract), the determination of compensation for the author, the designation of fields of use, and the provisions on the eventual transfer of ownership of a copy of work.

XII. Copyright Transfer Agreement

Copyright transfer agreement in principle stipulates that the transfer of rights is permanent, which significantly differentiates such agreement from a licence that guarantees time-limited permission to use work (license rights expire with the license term, and the rights are granted for reuse back to the author). In the case of copyright transfer agreement, considering the permanency of rights transfer, the acquirer can transfer the rights to others or grant license (he/she acts as the creator in the economic sense). In some cases, it is possible to withdraw from a copyright transfer agreement, but only in situations stipulated in the Act on Copyright and Related Rights (Art. 56-58), or in the contract. Noteworthy, contract to transfer the author’s economic rights must be made in writing under pain of nullity (Art. 53 of Act).

XII. License Agreements

In principle, license agreements give permission to use a piece of work for the period of 5 years on the territory of the country in which the licensee resides. Thus, in case when the licensee chooses to extend the period of license or widen the geographical territories under its authorization, it is necessary to introduce proper warranties to the agreement (given that license agreement signed for the period longer than 5 years is legally considered as effective until terminated). After the expiration of the period of license, its termination or withdrawal or any other legal situations which may cause its termination, the license expires and the rights are returned to the author (or the current holder of the author’s economic rights). The license can be exclusive (one subject is permitted to use it), or non-exclusive (more than one subject is permitted to use it). The exclusive license can only be made in writing under pain of nullity, whereas non-exclusive license can be made in any form – even oral (provided one is aware of certain evidential uncertainties).

XII. Fair Use of Copyrighted Works

The basic principle of copyright is that the use of copyrighted work requires the permission of the author or the current holder of the author’s economic rights (e.g. as license). There are, however, some legal exceptions to this principle, which is a sense allow for legal inference in the so-called author’s monopoly. In such cases, it is possible to use a wok without the permission of the author and free of charge (unless such obligation is directly stipulated in a given copyright law). These exceptions – regulated in Art. 23-35 of Act – are designated as permissible use of protected works.

The doctrine of fair use is intended to balance the property interests of copyright holders with the public’s interest in open access to cultural goods and information. Noteworthy, fair use is an exception from the general principle of copyright laws and should be interpreted in a restrictive manner. There are rules which can be applied to all of permissible uses of work (defined in Art. 34-35 of Act). The main condition under which permissible use is allowed is that the author and the source have been named (in the case of web sites, stating html address). Furthermore, it is not permitted to infringe the normal use of the work to the extent of violating the rightful interests of the author, or treating it as the main field of exploitation.

In the sphere of permissible use, one can differentiate the so-called personal use (Art. 23 of Act), or public use, e.g. (i) dissemination for informative purposes (Art. 25 of Act); (ii) reports of current events (Art. 26 of Act); (iii) right to quote (Art. 29 of Act); (iv) public performance (Art. 31 of Act); and (v) dissemination of commonly accessible works (Art. 33 of Act).

XIII. Right to Quote

According to Art. 29 § 1 of Act, it shall be permitted to quote, in works constituting an independent whole, fragments of disseminated works or minor works in full, within the scope justified by explanation, critical analysis, teaching or the rights governing a given kind of creative activity (21). The permission to use right to quote is granted only under the condition that all requirements stipulated in this Article are fulfilled; otherwise the use that violates any of the requirements is considered to be a form of infringement.

The main condition relates to the quote being used within the scope of works constituting an independent and integral whole. Hereby, it is noteworthy that the piece of work which includes a quote from other authorized works needs to constitute an independent unity and be subject to copyright (22) (e.g. quote from a book in a polemical article or review). It is also required that the quoted work is public, i.e. made publicly accessible with the author’s permission (Art. 6 pt. 3 of Act). The current regulations do not precise which part of work can be used within the scope of quote, but only state that it can be a fragment of work, or a minor work in full. In principle, a quote is limited to a few sentences or a few seconds of music, though this depends on a particular event and many individual circumstances (e.g. the scope of work, its aim).

From legal point of view, the aim of quoting is similarly crucial, and might include explaining, teaching purposes, critical analysis, or specificity of the work’s genre (collage). Noteworthy, copyright does not limit the character of work which is used within the scope of right to quote; in practice, it is usually verbal, music or art quote.

XIV. Fair use in art

In principle, the regulations of fair use pertain to all copyrighted works and do not provide separate regulations for art works, even though it is evident that any appropriations benefitting from the doctrine are subject to additional conditions. The use of the effects of artistic activity principally occurs within the scope of the following uses: personal use (Art. 23), reports (Art. 26), right to quote (Art. 29), the rights of the owner of a copy (Art. 32), dissemination of commonly accessible works (Art. 33), and use for promotion (Art. 33). The regulations pertaining to the so-called personal use allow to use free of charge the work which has already been disseminated for purpose of personal use (e.g. creating a catalogue of interesting objects exhibited on auctions, or collecting reproduced art works protected by copyright). Personal use does not allow, however, to further disseminate such works by, for example, publicizing a catalogue on an Internet website, or using a private collection commercially to sell reproductions.

Art. 26 of Act, on the other hand, permits to quote, in the reports of current events, the works made available in the course of such events, however, within the limits justified by the purpose of information. Typical examples would be a report of exhibition in which some footage from selected works is used, or an interview with an artist or a curator that shows fragments of exposition. The definition of “current” pertains to a report of opening (vernissage), duration or closing of an exhibition (finissage). The limit to fair use is the justified purpose of information, which should not raise any doubts – the idea is to inform about the event and promote it instead of allowing the viewing of exhibition without personal attendance. The right to quote permits to quote fragments of disseminated works or minor works in full, within the scope of independently created work, justified by explanation, critical analysis, teaching or the rights governing a given kind of creative activity.

Thus, it is necessary to create a work constituting an independent whole – for example a publication on the subject of theory or history of art in which particular objects illustrate the content, which is connected with teaching or explaining. Similarly, critical works within the scope of art may justify the use of particular reproductions of art works. It is also possible to use fragments of works of other artists in personal artistic activity as the co-called art quote, which is a common phenomenon in modern art, hence within the scope of the rights governing a given kind of creative activity. Some controversies are raised by the permit to use legally established works exclusively based on quotes (e.g. found footage movies), not only in the context of infringing the right to quote, but also because of the potential infringing of the integrity of works used in the process of creation. In principle, the infringement of copyright occurs due to the misconception that the right to quote permits arbitrary use of a given work, as far as the use concerns a minor fragment of work, thus without any personal creative contribution. Whereas the scope of quote remains important, the decisive factor is whether the user creates his/her own work in which he/she only quotes from another work in one of purposes permitted by copyright. Another example of fair use permits the owner of a copy of the artistic work to exhibit the copy publicly if no material benefit is intended to be gained.

The collector who acquires an artwork in an art gallery or on an auction only gains proprietorship, but not the author’s economic rights. In consequence, it is possible to organize a non-commercial exhibition of works, but commercial selling of reproductions would require a separate agreement. Importantly, if a work is permanently exhibited in a public place (e.g. site specific art object), in the event of when it is necessary to destroy (e.g. rebuilding) the original copy of an artistic work found in a public place (e.g. site specific art object), the owner is obliged to offer the author or his/her relatives to sell it, whereby the highest price limit is set by the value of the materials. Additionally, in this case, the owner is obliged to make it possible for the author to make a copy, or depending on the type of the work, a proper documentation thereof (e.g. draft or removal of mural). With reference to art objects permanently found in public places (roads, squares, streets, parks), permissible use allows for their dissemination, although not for the same use (e.g. it is permitted to publish photographs on a web site, but not to build a copy of a sculpture with the purpose to exhibit it in another place). In the case of works exhibited in commonly accessible public collections such as museums, galleries, and exhibition halls, it is permitted to disseminate, although only in catalogues and printed publications for promotion of such works (exhibition catalogue). Similarly, it is permissible to use copies of already disseminated works for the purposes of advertising, a public exhibition or a sale, within the scope justified by the promotion of an exhibition or sale, excluding any other commercial use. Typical examples of permissible uses are posters or placards informing about an exhibition, or a painting put in a gallery stall for sale. To conclude, it should be emphasized that in cases where no fair use regulations are determined, every use of a copy of work or its reproduction requires the permission of the author’s or an authorized person. The presented uses allow to balance the protection of the interests of copyright holder with the practical functioning of art market in which promotion and informing about artistic events are unavoidable. Noteworthy, the fair use doctrine is a peculiar breach in the protection of personal and economic rights of the author, and in result it should be treated with due caution and constraint.

XV. Liability – Infringement of Copyright

Above all, it should be underlined that infringement of copyright is objective, that is independent of good or bad will of the infringing person. Similarly, the circumstance that infringement was committed for commercial or non-commercial purpose does not nullify the fact of infringing, however it might influence the amount of claim (e.g. lack of obligation to refund the amount of illegal financial benefits).

The liability for infringement of copyright may be civil (Art. 78-79 of Act) or criminal (Art. 115-123 of Act), concerning the nature of infringement. The civil claims include: (i) cease of infringement, (ii) the claim to eliminate the consequences of infringement, including making a proper statement of reparation, (iii) rendering the acquired benefits; (iv) compensation, (v) payment of the amount of respective remuneration, and (vi) payment of an appropriate sum in favour of a proper cause (e.g. Fund for Promotion of Creative Activity) (23). The criminal liability relates to, among other things (i) plagiarism, (ii) misguiding ascription of authorship (iii) illegal dissemination, (iv) ungrounded recording or multiplication and (v) trade of illegal copies.

 

Translated by Aleksandra Bubiło
Edited by Bartosz Wójcik

 

Footnotes:

1 Słownik terminologiczny sztuk pięknych [A Dictionary of Fine Arts Terminology], ed. K. Kubalska – Sulkiewicz, p. 233, PWN, Warsaw 2012.

2 Art. 1 § 1 Act of 4 February 1994 on Copyright and Related Rights.

3 Art. 1 § 2 Act of 4 February 1994 on Copyright and Related Rights.

4 SC Res. of 8.11.1932, Zb. OSN 1933, item 7.

5 SC Res. of 28.01.2004, IV CK 417/02.

6 SC Res. of 12.06.1978, WiR 1978, No. 15, p. 13.

7 SC Res. of 23.07.1971, II CR 244/71.

8Judgment of Supreme Court of 17.11.2011, III CSK 30/11.

9 Art. 17 Act of 4 February 1994 on Copyright and Related Rights.

10 Prawo autorskie i pokrewne. Komentarz [The Commentary on the Copyright and Related Rights], J. Barta, M. Czajkowska – Dąbrowska, Z. Ćwiąkalski, R. Markiewicz, E. Traple, p. 247, Zakamycze, 2007.

11 Art. 89 Act of 4 February 1994 on Copyright and Related Rights.

12 Art. 4 Act of 4 February 1994 on Copyright and Related Rights.

13 Art. 16 Act of 4 February 1994 on Copyright and Related Rights.

14 Art. 12 Act of 4 February 1994 on Copyright and Related Rights.

15 Art. 13 Act of 4 February 1994 on Copyright and Related Rights.

16 Art. 8 § 1 Act of 4 February 1994 on Copyright and Related Rights.

17 Prawo autorskie i pokrewne. Komentarz [The Commentary on the Copyright and Related Rights], J. Barta, M. Czajkowska – Dąbrowska, Z. Ćwiąkalski, R. Markiewicz, E. Traple, p. 187, Zakamycze, 2007.

18 Prawo autorskie i pokrewne. Komentarz [The Commentary on the Copyright and Related Rights], J. Barta, M. Czajkowska – Dąbrowska, Z. Ćwiąkalski, R. Markiewicz, E. Traple, p. 186, Zakamycze, 2007.

19 Art. 9 § 1 Act of 4 February 1994 on Copyright and Related Rights.

20 Art. 9 § 2 – 3 Act of 4 February 1994 on Copyright and Related Rights.

21 Art. 29 § 1 Act of 4 February 1994 on Copyright and Related Rights.

22 Prawo autorskie i pokrewne. Komentarz [The Commentary on the Copyright and Related Rights], J. Barta, M. Czajkowska – Dąbrowska, Z. Ćwiąkalski, R. Markiewicz, E. Traple, p. 346, Zakamycze, 2007.

23 Art. 78 – 79 Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws 06.90.631).