.

Who can distinguish the fields of exploitation?

At the outset, it should be noted that PrAut in its provisions stipulates the obligation to list the fields of exploitation in agreements concerning the transfer of economic copyrights or the use thereof.

Article 41(2) of PrAut: An agreement on the transfer of author’s economic rights or an agreement on the use of a work, hereinafter referred to as a ‘licence’, shall include the fields of exploitation expressly listed therein.

The verb “enumerate” simply means to distinguish, to concretise.

The fields of exploitation are thus specified by the Parties to a given legal relationship in a contract concerning the transfer of copyrights to a work or authorising its use (licence).

How can the fields of exploitation be listed?

The enumeration of fields of exploitation in a contract can be done in several ways, e.g. by:

• reference to Article 50 of PrAut;
• listing of specific ways of authorising use of the work;
• reference to “in all fields of exploitation”. – note: this formulation may raise doubts due to the lack of sufficient concretisation of rights and the prohibition to dispose of fields of exploitation unknown at the time of conclusion of the agreement[1].

However, it should be borne in mind that it is not necessary to use the terminology found in Article 50 of PrAut directly in the agreement[2]. The Parties may use synonymous terms or other terms similar in meaning.

The most important thing, therefore, is for the Parties to pay attention to the need to indicate the fields of exploitation. And the reconstruction of the fields of exploitation itself may also take place later in the course of their performance of a given agreement, e.g. pursuant to Article 65 § 1 and § 2 of the Civil Code Act of 23 April 1964 (Journal of Laws of 2024, item 1061 t.j.)[3] (hereinafter:the“Civil Code”).

How can the Parties specify the fields of exploitation in the contract?

The principle of freedom of contract contained in Article ³⁵³¹ of the Civil Code provides that:

“Parties entering into a contract may arrange the legal relationship as they see fit, so long as the content or purpose of the relationship does not contradict the properties (nature) of the relationship, the law or the principles of social co-existence.”.

This principle thus constitutes the Parties’ right to modify or specify named or unnamed fields of exploitation, e.g. by:

• a temporal or territorial criterion, e.g. performance of the work exclusively in Warsaw theatres for one year from the date of conclusion of the licence agreement;
• restriction of the possibility of reproduction to specific ways, e.g. only to the printing technique;
• distribution of the work only to professional entities engaged in the activity concerned;
• importing the work only from producers covered by a specific certification.

What fields of exploitation can we classically distinguish?

PrAut does not contain a closed catalogue of fields of exploitation. On the other hand, in its Article 50 it lists 3 basic fields of exploitation of a work, viz:

• fixation and reproduction;
• circulation of the original or copies on which it is recorded;
• distribution by means other than the above.

The above division of fields of exploitation has been created within the framework of basic issues related to the essence of a work and the ways of its use, so that it may obtain the form in which it is suitable for use in trade, the use of its carrier and the use of it without the use of the carrier[4].

The above 3 main planes are also detailed, by way of example, in Article 50 of PrAut itself, as follows:

In the next series, we will move on to explain the basic fields of exploitation that allow the use of a work.

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[1] B. Giesen [in:] Commentary on the Copyright and Related Rights Act [in:] Copyright Laws. Commentaries. Volume I, ed. R. Markiewicz, Warsaw 2021, art 41.

[2] Judgment of the Supreme Court of 14 September 2005, ref. III CK 124/05.

[3] Art. 65 § 1 KC: A declaration of intent shall be interpreted in such a way as is required by the circumstances in which it was made, the rules of social intercourse and established customs.

Art. 65 § 2 KC: In contracts, it is necessary to examine what was the consensual intention of the parties and the purpose of the contract rather than to rely on its literal wording.

[4] K. Klafkowska-Waśniowska [in:] Commentary to the Copyright and Related Rights Act [in:] Copyright Laws. Commentaries. Volume I, ed. by R. Markiewicz, Warsaw 2021, Article 50.