– Recording and reproduction –

Preservation and reproduction of works in accordance with Article 50(1) of PrAut is specified by producing copies of a work using a specific technique, including printing, reprography, magnetic recording and digital technique.

Recording is the creation of the first copy, which can then be reproduced, i.e. the production of further copies using any technique (copies).

Fixation and reproduction are practically inseparable from each other in that fixation in practice does not occur independently. Fixation is, after all, stage 1 of the subsequent reproduction of a work[1].

Reproduction may be permanent or temporary, which should already be taken into account when listing them as fields of exploitation. In addition, the technique allowing reproduction should be indicated – in the event that the rightholder would like to restrict his/her contractual partner from copying the work by any means.

With regard to reproduction of a work, the doctrine draws attention to the possibility of reproducing previous versions of the work.

Thus, the question arises as to whether the entity that obtained the right to reproduce the work in its final version is authorised to reproduce its existing forms also in draft versions, which could, after all, also constitute separate fields of exploitation. In resolving this problem, it is assumed that the granting of authorisation for reproduction also covers those reproductions which precede this final reproduction resulting in the final making available to the public[2]. There is no doubt that this is dictated by functional considerations. It is often necessary to use previous versions of a work in order to prepare the final form. Conversely, authorising the reproduction of previous versions of a work can sometimes be very difficult, e.g. by not being able to clearly distinguish them.

– Trading in the original or copies on which it has been fixed –

Pursuant to Article 50 of PrAut, dealing in the original work or its copies has been combined with the authorisation to use the medium on which the work has been fixed.

What is a medium?

A medium is a copy of a work, which may be in the form of a tangible record (e.g. print) or an intangible record (e.g. digital copy).

However, a medium is not those copies that have within them a work (e.g. software) associated with the proper functioning of a device (e.g. a mobile phone). This is because of their function as a component part of the definitive work without which the latter could not exist[3].

Coming back, however… what is this circulation?

Circulation according to Article 50 of PrAut is the marketing, lending or rental of the original or copies.

All these 3 forms of circulation are defined in Article 6 of PrAut, and thus:

• the introduction of a work to the market is, in turn, making its original or copies available to the public by means of the transfer of their ownership made by the entitled person or with his/her consent (see Article 6(1)(6) of PrAut); the scope of this notion therefore includes all agreements the purpose of which is to transfer the ownership of a work, together with the medium recording it, e.g. sale, donation, exchange;
• lease of copies of a work is their transfer for a time-limited use in order to obtain, directly or indirectly, a pecuniary benefit (see art. 6 par. 1 item 7 of PrAut).
• lending copies of a work is their transfer for use limited in time, not aimed at directly or indirectly obtaining a pecuniary benefit (see Article 6(1)(8) of PrAut).

The difference between rental and lending is the issue of collecting financial benefits.

In this respect, reference should be made to the general principles, i.e. Article 710 of the Civil Code, which provides as follows:

By a lending contract, the lender undertakes to allow the recipient, for a definite or indefinite period of time, to use the thing given to him for this purpose free of charge.

Thus, lending of a work will always be free use, while rental of a work will be the possibility to use it in a paid manner (see Article 659 § 1 of the Civil Code).

In turn, the difference between the transfer of ownership of works and their rental and lending is the time limitation in the use of the work.

As a rule, ownership is transferred without a time limit, whereas rental and lending are by their very nature time-limited contracts, because even if they are concluded for an indefinite period of time, it is possible to terminate them[4].

– Distribution other than by circulation of the original work and copies thereof

This group should include all other forms of dissemination of a work, the purpose of which is to present the work to the public.

As examples of dissemination, the legislator indicates: public performance, exhibition, display, reproduction, broadcasting and rebroadcasting, as well as making a work available to the public in such a way that everyone can have access to it at a place and time chosen by themselves.

Due to the fact that within the meaning of Article 50(3) of PrAut, separate fields of exploitation are public dissemination of a work, it is necessary to define the term “making a workavailable tothepublic“. Thus, making a work available to the public constitutes such acts as a result of which an indefinite number of persons may have potential access to the work[5].

The CJEU jurisprudence further specifies that “public” implies an indeterminate number of potential recipients and, in addition, presupposes a fairly wide circle of such persons[6].

Therefore, in principle, the specifics of a given communication of a work will determine whether it has a public character.

In this regard, the CJEU jurisprudence is helpful, which provides for the cases in which a particular communication is considered to be public, and the following examples can be identified in this regard:

• the posting of a work on a website other than the one on which it was first made available without restrictions preventing downloading[7];
• the distribution of a signal by means of installed television sets by a hotel operator to persons occupying hotel rooms, and the private nature of the hotel rooms does not preclude a finding that there has been communication to the public[8];
• the provision by the manager of a building with flats for rent of television receivers with an internal antenna which, without any other intervention, receive signals and make it possible to broadcast programmes, when the occupiers of those flats can be regarded as a ‘new public’[9].

In contrast, the CJEU did not consider as public communication:

• the free reproduction of phonograms in a dentist’s practice in the context of the exercise of a liberal profession, for the benefit of clients who benefit from it independently of their will[10];
• the hire of motor vehicles equipped with radio receivers[11];
• the transmission of a work to a court as evidence in the context of legal proceedings between individuals[12].

At this point, it is necessary to proceed to an explanation of the basic types of fields of exploitation constituting dissemination other than by circulation of the original work and its copies.

– Public performance –

A public performance is nothing more than a live performance of a work and, due to its uniqueness, is given as a one-off.

As a rule, public performance applies to musical, literary, dramatic, pantomimic, spoken-word works.

In contrast, a public performance no longer requires the simultaneous presence of performers (e.g. singers) and audiences in one place (e.g. a philharmonic hall). Accordingly, simultaneous reception of this performance by the audience on screens set up near the place of the performance is also possible, as reception on screens is directed towards the same audience as the one participating in the given performance – of course, excluding possible simultaneous transmission of the work performed in this way, which will constitute another separate field of exploitation[13].

What is important is that the public performance of a work may create a new subject of protection, which is the artistic performance[14].

– Exhibition –

Exhibition is the totality of the acts involved in the public presentation of a work or a copy thereof.

Literally, it therefore does not apply to works whose essence of determination is movement (e.g. scenic, choreographic, pantomimic and audiovisual works. In their respect, therefore, we will be dealing with reproduction[15].

Accordingly, it mainly concerns visual works, photographs, industrial design, but also literary works (letters, diaries, manuscripts), scores of musical works, maps, models of architectural, architectural-urban and urban planning works.

– Display –

A display is nothing more than a presentation of a work associated with the use of a light stream, e.g. using a traditional film projector or overhead projector, but also a conventional screen[16].

Therefore, it will be associated with audiovisual and visual works (videograms), but also photographic and other works that have been fixed by photographic technique in the form of slides.

– Reproduction and broadcasting and rebroadcasting –

Reproduction, broadcasting and rebroadcasting have their legal definitions in Article 6(1) of PrAut, and so:

• playing a work is making it available to the public by means of sound, image or sound and image carriers on which the work has been recorded, or of devices for the reception of a radio or television programme in which the work is broadcast, or of devices enabling the use of the work made available to the public in such a way that everyone can have access to it at a time and place chosen by them (see Article 6(1)(9) of PrAut);
• broadcasting a work is its dissemination by means of radio or television broadcast conducted in a wireless (terrestrial or satellite) or wire manner, including by means of a technical process of direct introduction (see Article 6(1)(4) of PrAut);
• re-broadcasting of a work is its distribution by an entity other than the original broadcaster or the entity under whose control and responsibility such original broadcasting is carried out, by means of acquiring in its entirety and without modification the programme of a radio or television organisation and simultaneous and integral transmission of this programme to the general public, regardless of the manner in which the re-broadcaster receives the signal enabling it to re-broadcast, including the programme broadcast in the technical process of direct introduction (see Article 6(1)(5) of PrAut).

Each of the above-mentioned ways of distributing a work thus constitutes a separate field of exploitation, and it is therefore necessary to stop at each of the above-mentioned concepts and briefly discuss them.

The reproduction of a work may take place in two ways, by means of a sound medium or a sound and image medium.

As a consequence of the above, it is also possible to use media of two types, i.e. tangible (e.g. CD) and devices for the reception of a radio or television programme (e.g. mobile phone with internet access, radio receiver).

In this respect, it is important to note a kind of demarcation. Making a work available to the public is an entitlement stemming from the right holder’s copyright monopoly, and therefore requires the conclusion of a relevant agreement (obtaining authorisation) and payment of remuneration. On the other hand, public reception of broadcast works (e.g. in a radio or television programme) with the use of equipment placed in a generally accessible place, when it is not connected with generating financial benefits, may be within the scope of permitted use described in Article 24.2 of the Copyright Act[17], and thus does not require the conclusion of a relevant agreement (obtaining authorisation) and payment of remuneration[18].

On the other hand, broadcasting is a unilateral act of the broadcaster, which may be of a radio (sound) or television (audiovisual) nature, take place by wire or wireless through a terrestrial station and via satellite[19].

Broadcasting does not lose its public character, even though the audience belonging to it is the owners of the relevant equipment (e.g. an aerial, a television receiver), from which that part is singled out who fulfil the additional conditions imposed by the broadcaster (e.g. pay the relevant subscription fee)[20].

Broadcast works are distributed in such a way that viewers receive the same content in different places, but at the same time.

In view of this, it must also be considered that broadcasting also extends to certain other transmissions over the Internet, e.g. self-simulcasting (simultaneous and unaltered transmission also over the Internet of one’s own radio or television programme received by terrestrial or cable means[21]) and primary webcasting (delivery of presentations containing video, sound and text via a web browser[22])[23].

Re-broadcasting is the simultaneous distribution of a radio or television work without making any changes to the work.

Thus, a rebroadcaster cannot make any time-shift in the rebroadcasting of a work (!) – otherwise it would be entering the field of exploitation, which is broadcasting[24].

Currently, the best known example of re-broadcasting is pay-per-view streaming, where an entity other than the original broadcaster broadcasts a programme, the reception of which is on a conditional access basis as in traditional broadcasting (e.g. a fee must be paid)[25].

– Communication to the public of a work in such a way that members of the public may access it from a place and at a time individually chosen by them.

In contrast to the above separate fields of exploitation, making a work available to the public in such a way that everyone can access it from a place and at a time individually chosen by them requires active action by the recipient of the work.

Therefore, this field of exploitation, as it were, redefines the notion of an ‘audience ‘ as individual members of thepublicwho can access the work in different places and at different times. They are sometimes also referred to as potential audiences[26].

This field of exploitation is thus related to streaming media, which offer online access to works (e.g. film, music) upon payment of the required fee. It is therefore the basis for the well-known streaming platforms offering so-called video on demand, e.g. Netflix or Apple Music[27].

However, it can also constitute a form of dissemination in the form of downloading a digital version of a work via the Internet and then saving a copy on disk, using the software in an IaaS and SaaS environment or as part of linking[28].

________________________________________________________________________________

[1] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[2] E. Traple [in:] Copyright and Related Rights Act. Commentary, 5th edition, ed. J. Barta, R. Markiewicz, Warsaw 2011, art. 50.

[3] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[4] Article 673 § 1 KC: If the duration of the lease is not fixed, both the lessor and the lessee may terminate the lease in accordance with the contractual terms, and in the absence thereof in accordance with the statutory terms.

Art. 673 § 2 of the Civil Code; Statutory notice periods for termination of tenancy are as follows: when the rent is payable at intervals longer than one month, the tenancy may be terminated at the latest three months in advance at the end of a calendar quarter; when the rent is payable monthly – one month in advance at the end of a calendar month; when the rent is payable at shorter intervals – three days in advance; when the tenancy is daily – one day in advance.
Art. 715 of the Civil Code: If the lending contract has been concluded for an indefinite period of time, the lending ends when the recipient has made use of the thing in accordance with the contract or when the time in which he could have made this use has expired.

[5] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[6] CJEU judgment of 16 March 2017 in Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM) v Zürs.net Betriebs GmbH, C-138/16; CJEU judgment of 26 April 2017 in Stichting Brein v Jack Frederik Wullems, C-527/15.

[7] CJEU judgment of 7 August 2018 in Land Nordrhein-Westfalen v Dirk Renckhoff, C-161/17.

[8] CJEU judgment of 7 December 2016 in Sociedad General de Autores y Editores de Espana (SGAE) v Rafael Hoteles SA, C-306/05.

[9] CJEU judgment of 20 June 2024 in Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA) v GL, C-135/23.

[10] CJEU judgment of 15 March 2012 in Societa Consortile Fonografici (SCF) v Marc Del Cors, C-135/10.

[11] CJEU judgment of 2 April 2020 in Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim), Svenska artisters och musikers intresseorganisation ek. för. (SAMI) v Fleetmanager Sweden AB, Fleetmanager Sweden AB, C-753/18.

[12] CJEU judgment of 28 October 2020 in BY v CX, C-637/19.

[13] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. Wyd. 4, Warsaw 2021.

[14] Art. 85 PrAut.

[15] W. Machała [in:] Copyright and Related Rights. Commentary, ed. R. M. Sarbiński, Warsaw 2019, Article 50.

[16] W. Machała [in:] Copyright and Related Rights. Commentary, ed. by R. M. Sarbiński, Warsaw 2019, Article 50.

[17] Article 24 of PrAut:

1. It is permitted to distribute by means of a collective antenna and cable network the works broadcast by another radio or television organisation by satellite or terrestrial means, if this is done within the framework of simultaneous, integral and gratuitous distribution of radio or television programmes and is intended for a designated audience located in a single building or in single-family houses comprising up to 50 households.
2. The owners of equipment for the reception of radio or television broadcasts may use such equipment to receive the broadcast works, even if the equipment is located in a place accessible to the public, if no pecuniary gain is derived therefrom.

[18] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[19] W. Machała [in:] Copyright and Related Rights. Commentary, ed. by R. M. Sarbiński, Warsaw 2019, Article 50.

[20] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. Wyd. 4, Warsaw 2021.

[21] T. Guzik, Fields of exploitation of interactive television adopted in Polish copyright law [in:] Copyright and Industrial Property, Zeszytek naukowy Koło Cywilistów, Wrocław 2015.

[22] T. Guzik, Fields of exploitation of interactive television adopted in Polish copyright law [in:] Copyright and Industrial Property, Zeszyt naukowy Koło Cywilistów, Wrocław 2015.

[23] A. Niewęgłowski [in:] Copyright Law. Commentary, Warsaw 2021, art. 50.

[24] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[25] W. Machała [in:] Copyright and Related Rights. Commentary, ed. by R. M. Sarbiński, Warsaw 2019, Article 50.

[26] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. 4th ed. Warsaw 2021.

[27] A. Niewęgłowski [in:] Copyright Law. Commentary, Warsaw 2021, art. 50.

[28] E. Ferenc-Szydełko (ed.), Copyright and Related Rights Act. Commentary. Wyd. 4, Warsaw 2021; judgment of the SA in Warsaw of 7 May 2014, ref. I ACa 1663/13.