ROSZCZENIA PIENIĘŻNE W SPRAWACH O OCHRONĘ AUTORSKICH PRAW MAJĄTKOWYCH
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Date
2003
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Wydział Prawa i Administracji UAM
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PECUNIARY CLAIMS IN COPYRIGHT CASES
Abstract
The Polish Copyright Act provides for a number of claims for copyright protection, including
pecumiary claims i.e. claims seeking money payment. There are two claims falling under
this category in article 79 sections 1 and 2. The first of them is a claim to pay a multiple
salary (double or, in cases of culpable violation, triple remuneration at the time of making
the claim). The other one, payable to the Art Promotion Fund by the person who committed
a violation within the business activity performed on his own or another person’s behalf, payable
even to somebody else’s account in the amount of at least double the probable benefits
incurred by the violating party as a result of the violation. The Act also mentions claims to
return the benefits incurred and claims to redress injuries committed in a culpable act. These
claims can have either a pecuniary or non-pecuniary character (return of benefits in kind
or redressing injuries by restoration of the former state). Such interpretation of the character
of these claims results from respective provisions of the Polish Civil Code concerning unjust
enrichment (art. 405) and redressing injuries (art. 363), but this interpretation can also be
applied to the currently binding Act, irrespective of the view concerning the relation between
claims under the Act and claims under the Civil Code. In the doctrine there is a dispute whether
the claim to return incurred benefit, which is secured by consecutive copyright acts can
be considered an unjust enrichment claim as understood in the civil code or rather a separate
claim different in nature. The civil code appears to emphasise the non-pecuniary character
of the unjust enrichment claim and claim for redressing injuries, since it primarily quotes return
in kind (art. 405) and redressing injuries by restoration of the former state (art. 363 §1
sentence 1). It may appear, however, that in copyright cases claim for return of benefits incurred and
claim for redressing injuries will never have a non-pecuniary form due to the intangible character
of the protected good. This is not entirely the case, however. It has long been known
that such a claim to return incurred benefits in kind is an adjudicative claim i.e. one that seeks
an adjudication granting the copyright bearer the objects that were subject to violation.
The preceding copyright acts mentioned only unlawfully produced copies of work but at present
under art. 80 section 3 such a claim can be applied only to objects used for unlawful production
of copies of work or any other objects other than copies of work that were used for
the violation. However, this claim is presently classified by definition as a non-pecuniary claim
to remove the results of the violation, despite the fact that there are no sufficient grounds
for such a claim in the Act in the area o f economic rights. Although such grounds is sometimes
seen in art. 80 section 5, this provision can also be treated as a procedural counterpart
of adjudicative claim taken from the material law. Such an adjudicative claim, when interpreted
as a claim to remove the results of the violation rather than, alternatively, a claim to return
the benefits incurred, fails to have sufficient legal grounds in the Act. On the other hand,
it may be argued that the category of a claim for redressing injuries i.e. restitution claim includes
a claim to render harmless, in particular to destroy the objects used for the purpose of
unlawful production of copies of the protected work or any objects other than copies of the
work that were used for the purpose of the violation. Also this claim seems to be a form of
the by definition non-pecuniary claim to remove the results of the violation. Alternatively, it
may also be seen as a (non-pecuniary) claim for desistence, clearly indicated in the Act among
the claims available in cases of copyright violation (art. 79 section 1 in principio).
It is therefore possible to include within the category of pecuniary claims only those claims
for return of benefits or for redressing injuries that are based on a return of the benefit
value and redressing injuries through payment, which will prove dominant in the case of copyright
protection. With the above assumption the list of pecuniary claims resulting from the
Copyright Act includes the following:
• Claim to return benefits incurred,
• Claim to pay multiple remuneration,
• Claim to pay at least double probable benefit value;
• Claim for redressing injuries.
All the above claims can be accumulated except for the first two, which occur separately
due to deeper historical reasons.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 165, 2003, z. 2, s. 47-72