Poland – close to an end of the conflict between rights from registration of design and copyrights?

Dear Readers,

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, 2011 in 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 concerned.

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.