Undoubtedly, not all of you are familiar with Polish law and specifically Art
. 116 of Industrial Property Law
[IPL] pursuant to which “Products manufactured by means of an industrial design
and put on the market after the lapse of the right in registration granted for
such a design shall not benefit from the protection of author’s economic
rights in a work under the provisions of the copyright law” . Accordingly, while filing industrial design with
the Polish Patent Office you should be aware that after lapse of the protection
you will lose your copyrights probably in the most vital extent .
Above regulation seems to be inconstant with international law, community law and even, to some extent, with common sense
However, not all Polish jurisprudence promotes such point of view which
resulted in quite interesting doctrinal discussion .
Defenders of commented regulation present a standpoint that such limitation of
copyrights is reasonable since it is unfair when the right holder profits from
two rights concerning the same object .
Moreover, when he/she decides to file application for registration of
industrial design he/she simultaneously defines work as industrial design and
resigns form copyright protection . Such
standpoint might feature the elements taken from the old doctrine according to
which pieces of art belong to better world of beauty and sublime ideas on
counterpart to industrial designs which belongs to dirty world of money and
machines . Opponents,
beside indicating anachronism of such approach, raised the argument that simply
registered industrial design and works under copyright have different
prerequisites of protection and consequently, enjoy different scope protection
therefore, they do not protect the same object .
The above described discussion could probably last for a long time and could be a source of intellectual stimuli, also for the author who was attending to write a lengthy text in this respect but for the ECJ’s judgment of September 9,
case C- 198/10 . As you know, ECJ’s ruling in regard of the issue
in question was in favour of the copyright holders .
Luckily, this situation was noticed by the Ministry of Economy which was then
in the course of preparing a draft of amendments to the Industrial Property Law
that were supposed to account for community case law line in the scope
Hence, I hope that soon I will be able to present specific amendments in the Polish IPL concerning the above issues and other ones which, as I suppose and basing on my experience, will constitute a source of other interesting issues