Copyright – what to note?

Whether at work or in our private lives, we all come into contact with copyrighted works to a certain degree, for example when reading a book, listening to music or watching a movie. At the same time, some people are copyright owners as well as users. Below, we set out some important issues that you should be aware of if you are the author of a creative work, or if you enter into an agreement with the author, e.g. a copyright transfer agreement.

What can be copyrighted? Are there any exceptions?

First of all, it is important to know the definition of creative work, as they are copyrighted.

A creative work is any product of creative activity of an individual character, regardless of value, purpose or the form in which it is expressed. The law gives examples of such works, including those expressed in words, mathematical symbols or graphic signs (such as literary, journalistic, scientific, cartographic and computer programs); works of visual art; photographic; violin-making; industrial design; architecture, including urban and spatial planning; musical and musical-literary compositions; stage, musical-stage, choreographic and pantomime works; as well as audiovisual works, including films.

Are there any exceptions?

Despite this broad view of what can be copyrighted, the legislation explicitly states what cannot receive protection. The exceptions are:

• discoveries, ideas, procedures, methods and principles of operation and mathematical concepts (only the manner of their expression may be copyrighted);
• normative acts or official drafts;
• official documents, materials, signs and symbols;
• published patent or protective descriptions;
• simple press releases.

Can a creative work created with artificial intelligence (e.g. ChatGPT) be copyrighted?

The creation of a text, e.g. for a newsletter article, by entering ‘prompts’ – i.e. guidelines for the creation of the respective content – into ChatGPT is not protected under copyright law. The creator of a protectable work can only be a person, and one that has had a decisive influence on the creation of the work (creative activity).

Does the situation of a person on an employment contract and a person on a B2B contract differ in terms of copyright?

The situation of employees who create copyrightable works is regulated by the Polish Copyright and Related Rights Act (ustawa z dnia 4 lutego 1994 r. o prawie autorskim i prawach pokrewnych) (the “Copyright Act”), in particular Articles 12, 13 and 74. These set out that, if the employment contract does not contain any provisions relating to copyright, the provisions of the Copyright Act apply.

For example, according to Article 74 point 3 of the Copyright Act, in the case of computer programs created by an employee in the context of an employment relationship (programmer) – the economic rights vest in the employer (unless otherwise specified by the parties in the employment contract). This means that the employer immediately acquires the copyright to the computer program (primary acquisition).

In the case of anyone working on the basis of a contract of mandate or a B2B contract, the issue of copyright resulting from the performance of the contract has to be explicitly regulated in the contract of mandate/B2B contract or in a separate contract, as the Copyright Act does not provide for them in the same way as for employees.

How are copyrights transferred effectively?

With the exception of the situation of employees, which is regulated in the Copyright Act, the transfer of copyright must be in written form or will not be valid (Article 53 of the Copyright Act).

Written form is understood as signing a paper agreement with a traditional signature, or signing an electronic document with a qualified electronic signature complying with eIDAS standards.

This means that signing a copyright transfer agreement with a trusted profile, DocuSign (ordinary electronic signature), signing a scan of the agreement or inserting a signature will cause the copyright transfer agreement to be invalid, as these are not considered written forms.  

In practice, this means that the agreement does not exist and therefore no transfer of copyright will be effective.

What is the difference between economic rights and moral rights?

Copyright protects two types of rights: economic rights and moral rights.

Economic rights to a work define the exclusive right of the author to use and dispose of the work in all fields of exploitation, and to receive royalties or other payments for the use of the work.

Moral rights can be transferred by inheritance or by contract (e.g. B2B, work contract, commission contract, sales contract, etc.).

Moral rights are the author’s non-economic rights and last indefinitely. They protect the author’s connection with a work, and specifically the right to:

• claim authorship of the work (the right of paternity or the right of attribution);
• ensure the author’s name is credited or to have a work published anonymously or pseudonymously;
• protect the integrity of the content and form of the work and its fair use;
• decide on making the work available to the public for the first time;
• supervise the manner in which the work is used.

The Copyright Act (Article 16) explicitly states that authors cannot waive or transfer (sell) their moral rights.