Bad faith – the relevant moment of assessement

According to the wording of Article 60 of the Civil Code, “subject to exceptions provided for in the Act, the will of a person performing a legal act may be expressed by any conduct of that person that sufficiently reveals his/her will (…)”. In the judgment of July 26, 2024 (XVII GW 86/23), the District Court in Gdańsk addressed the issue of freedom of form of declarations of will in the context of the transfer of copyright property rights. In the case at hand, the plaintiff requested protection under Article 79 paragraph 1 point 2, point 3 letter b) of the Copyright Act.

The plaintiff took the position that the use by the defendant trade union of seven photographs taken by the plaintiff for the purposes of the exhibition presented by the defendant took place without the plaintiff’s consent and thus violated his copyright.

The court did not agree with the plaintiff’s position and dismissed the claim in its entirety. According to the Court, the parties to the dispute were bound by a non-exclusive license agreement, so the defendant association was authorized to use the photographs provided by the plaintiff. Importantly, no agreement was drawn up in connection with the transfer of the photographs regarding their use.

For this reason, taking into account the content of Article 53 of the Copyright Act, the Court ruled out the thesis that the plaintiff transferred the copyright to the photographs to the defendant, because the Act stipulates written form ad solemnitatem for such an agreement. As for license agreements, as the Court correctly noted, in accordance with Article 67 paragraph 2 in connection with Article 67 paragraph 5 of the Copyright Act, the requirement to maintain written form under penalty of nullity applies only to exclusive license agreements. On the other hand, according to the Regional Court in Gdańsk, “the view that it is possible to conclude a non-exclusive license agreement impliedly (per facta concludentia) in accordance with the content of Article 60 of the Civil Code is generally accepted in the case law of the Supreme Court and common courts”.

The Court assessed that the plaintiff’s conduct sufficiently revealed his will. In the Court’s opinion, this was indicated by, among other things, the fact that the plaintiff provided the photos in the form of very high-quality files, which made it possible to print them on exhibition boards in an appropriately large format without losing the quality and sharpness of the photographs (if the plaintiff had provided these photos – as he claimed – only for the archive to have information about the plaintiff’s photographic resources, then, in the Court’s opinion, it would have been sufficient to provide files saved in lower quality); also the reservation made by the plaintiff regarding the use of the photos (“for trade union purposes”) sufficiently revealed his will. “Due to the type of transferred works, determining the manner of their exploitation, the clear definition of the defendant Association’s goals in its statute, the long-term cooperation between it and the plaintiff (…), this assessment is justified, as it is impossible to assume that the reservation made when transferring copies of photographs to the archive was ambiguous or incomprehensible to the parties.

As for the stipulation in art. 41 sec. 2 of the Copyright Act, i.e. the obligation to specify the fields of exploitation in the license, in reference to this issue, the Court referred to the opinion of the Supreme Court, according to which “the parties may determine the scope of use of the work by the purchaser or licensee in any way, as long as it does not raise doubts” (Supreme Court judgment of 14 September 2005, file reference III CK 124/05) and considered the plaintiff’s reservation regarding the use of the works for “union purposes” to be sufficient. It should therefore be borne in mind that under Polish law, unless the act provides otherwise, it is possible to express will using any symbol. The decision of the Regional Court in Gdańsk shows that in relation to granting permission to use a work — in a non-exclusive manner — an implied declaration of will will be effective, i.e. one that is made “through other means of manifesting will, according to the circumstances of a given case” [S. Grzybowski, (in:) System Prawa Cywilnego, vol. 1, Warsaw 1974, p. 539; quoted after: Z. Radwański, A. Olejniczak, Prawo cywilne,  Warsaw 2019, p. 245].

The decision is not final.