OBLIGATION TO PROVIDE COPYRIGHT EVIDENCE

Sep 5, 2022

Whether a given work is considered a work within the meaning of the Act on Copyright and Related Rights is determined by its individual character and the creative process. In the event of a copyright infringement, and consequently pursuing claims, it is important to remember to prove these elements in court. We will discuss this issue based on the judgment of the District Court in Bydgoszcz of February 25, 2022.

FACTS

The plaintiff runs a business in which she sells mugs, stickers and other gadgets. All items have graphics inspired by folk patterns, made by the claimant’s employee. The patterns designed by him were created on the basis of the basic principles of composing folk art. The plaintiff licenses its design.

The defendant also runs a business in which she offers the necessary supplies to hairdressing salons. She sells dryers too. These products were imported from a Chinese supplier.  The supplier offered a few patterns of dryers, among them the floral graphics disputed by the plaintiff. The dryers with floral pattern offered by the defendant were fully sold before the date of filing the statement of claim.

The plaintiff applied for an award of financial compensation from the defendant for infringement of proprietary copyrights, for ordering the defendant to refrain from infringing the proprietary copyrights of the plaintiff.

In response to the claim, the defendant demanded that the claim be dismissed. In order to substantiate its claims, the defendant indicated that she was not the author of the designs used on the dryers. They are part of the goods she ordered. In her opinion, the contested pattern is not identical to the one used by the plaintiff. According to the defendant, the designs presented by the claimant are not individual and do not meet the conditions of a work within the meaning of the Copyright Act. Out of procedural precaution, the defendant questioned the amount of the compensation claimed by the plaintiff. Finally, the defendant indicated that the claimant’s claim should be assessed in terms of Art. 5 of the Civil Code.

OBLIGATION TO PROVIDE EVIDENCE

“The burden of proving the fact lies with the person who derives legal consequences from it (Art. 6 of the Civil Code)”.

In the present case the main issue is the obligation to prove the fact. It was the plaintiff who should have proved that the stylized graphics created by her employee are works within the meaning of Art. 1 of the Act on Copyright and Related Rights. The most important things here are to show the character of an individual work and to demonstrate the creative process. For this purpose, the author’s testimony turned out to be insufficient. It was necessary to refer to the opinion of an expert in the field of ethnography. Due to the unique character of the graphics, specialist knowledge is necessary when assessing them, which neither the claimant nor the Court has. A specialist in this field would undoubtedly assess the individual character of the plaintiff’s designs. Moreover, considering the fact that the plaintiff’s employee is the author of the designs, she was also obliged to confirm the ownership of the economic copyrights to the works. The plaintiff’s obligation was also to prove that the defendant is a passively identifiable person and therefore used the design without proper authorization. An Art. 422 of the Civil Code will be useful in that case. “According to its content, not only the person who caused it directly is responsible for the damage, but also those who induced or helped another person to cause damage, as well as those who knowingly took advantage of the damage caused to another. If several people have committed the infringement together (joint perpetrators), they will be jointly and severally liable (Art. 441 § 1 of the Civil Code) ”.[1] As indicated by the Court, an entity wishing to use someone else’s work is obliged to contact the author of the work in order to acquire the necessary rights.

Unfortunately, none of these facts was duly proved by the plaintiff.

SUMMARY

The claim was dismissed. The plaintiff failed to fulfil her obligation and failed to prove the facts from which she derived legal effects. She did not confirm that the pattern created by her employee was a work within the meaning of the Act and that it has an individual character. As a result, her claims turned out to be unfounded.

Nevertheless, the actions of the defendant also deserve commentary. When buying dryers with the disputed design, she did not think about the origin of the graphic, its author, she entrusted the supplier in this matter, whose duty was to complete all formalities to use the design legally. In such a situation, it is worth being cautious, because, as we have indicated above, in the event of a breach committed by several entities, they bear joint and several liability, even if it was an unconscious act. As indicated by the Court, the defendant may be accused of unintentional fault in the form of negligence. This matter should be treated as a kind of warning against any action should be taken with due responsibility.

[1] A. Drzewiecki, Ustawa o prawie autorskim i prawach pokrewnych. Komentarz, 2021, wyd.4

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