Discussed below is the state of Intellectual Property, or IP, in Poland.
Please note that this section is broken into two categories: IP from a
technology perspective and a general overview of IP in Poland. Discussed
first is IP from a technology perspective because of the objective of
this analysis. The latter category is presented only as a reference to
Poland's general IP policies.
RECORDING INDUSTRY (1)
Piracy of CDs (both via wholesale and resale venues) remains the largest
source of piracy in the recording industry. The level of piracy in the
recording industry reached 30% in 2001, with approximately 90% of CDs
smuggled into the country coming through its eastern border. In a two-month
period in 2001, over 100,000 pirated CDs were seized by authorities, and
throughout all of 2001, Police enforcement authorities recovered approximately
1,001,180 CD units, amounting to more than $37 million (US) in losses.
CD-R and MP3 piracy are still documented as being an insignificant phenomenon.
SOFTWARE INDUSTRY (3)
The Interactive Digital Software Association (IDSA) indicates that the
estimated level of entertainment software piracy on all platforms exploded
in Poland, from 60% in 1999 to 90% in 2001. The increase is reflected
in the significant increase in the estimated trade losses due to this
form of piracy, which amounted to $115.8 million in 2001. ISDA reports
that pirated copies of videogame software for the PlayStation2® are
selling for less than $1.00 (US), resulting in a loss of more than 20%
of the PlayStation2® market. (4)
Contrary to the aforementioned trend, the Business Software industry
piracy has declined significantly in 2001, to $55.8 million (US), with
a 49% piracy level. (5)
The chart below exhibits Poland's software piracy level over the past
by: Business Software Alliance©, 2002 IPR Piracy Study - Research
conducted by the International Planning and Research Corporation.
Piracy over the Internet is beginning to appear in Poland. As mentioned,
the recording industry (ZPAV) reports that the number of websites offering
unauthorized MP3 files for download is not very high. In 2001, ZPAV undertook
the initiative to notify local Internet Service Providers about the infringing
material located on their servers. As a result, 31 websites were taken
down and hundreds of files removed upon ZPAV's notice. ZPAV closely cooperates
with IFPI's Internet Anti-Piracy Unit in the fight against Internet Piracy.
Intellectual Property (General)
On August 22 2001 a new Industrial Property Law of June 30, 2000 came
into force, which replaced four previous items of legislation (Laws on
Inventive Activity, Trade Marks, Integrated Circuit Patents and on the
Patent Office). The new legislation does not significantly change the
regulations applied to industrial and commercial intellectual property
Poland is a member of the Stockholm Text of the Paris Convention on the
Protection of Industrial Property. Since 1990 Poland is also a signatory
to the Patent-Cooperation Treaty. As of August 22, 2001 Industrial Property
Law of June 30, 2000 regulates the protection of inventions by patents
and utility models. Applications are filed with the Polish Patent Office.
Polish patent attorneys must represent foreign applicants. (8)
Registered patents are valid for 20 years from the date of filing. The
protection right of a utility model is valid for 10 years. To keep a patent
or protection right in force annuities are to be paid. Patents are granted
after an examination as to whether an invention is new, involves original
research and is commercially viable. A utility model is to be new and
useful and to relate to the shape, construction, or arrangement of an
object that has a durable form. Applications are published 18 months form
the priority date.
The patent or protection right of a utility model gives the owner the
exclusive right to exploit the invention on the territory of Poland while
it is valid. The exclusive right cannot, however, be abused especially
by applying prohibited monopolistic practices. In particular, patent rights
will not apply where its exploitation by a third party is necessary to
satisfy a domestic market need and, specifically, when the public interest
requires so and supply and/or quality of the product concerned is insufficient,
and/or its price is unduly inflated. This provision, however, does not
apply in the first three years following patent registration.
Abusing patent rights as well as preventing or eliminating a state of
national emergency may be a reason for applying for a compulsory license.
There are not special terms on licenses. The owner of a patent or exclusive
license has the right to sue for an injunction on account of profits and/or
damages. Criminal penalties are foreseen for false marking and infringement.
Marking products with a patent number is commonly used but not obligatory.
Poland is a member of the Madrid Agreement on the registration of trademarks
and the prevention of false or deceptive indications of source of goods.
Since 1991 Poland is also a member of the Madrid Agreement on international
registration of trademarks and became a member of the Protocol to this
Agreement in the spring of 1997. The following kinds of mark may be registered:
· Service mark
· Collective mark
· Mutual quality assurance trademark
A registered trademark is valid for 10 years from the date of filing
unless it is proved that for five consecutive years the mark has not been
used. The registration may be renewed for the next 10-year period. In
case of infringement the proprietor or licensee can take legal steps.
Protection is extended to names of geographical places and regions, where
the name refers to a specify locality or area which is associated with
a particular product and where there is a particular characteristic of
the product associated with the name. Foreign applicants have to be represented
in Poland by a local patent agent. There are several patent attorney agencies.
The largest are Polservice and Patpol.
The copyrights in Poland are protected by the Law on Copyrights and Rights
Related of February 4, 1994, which was substantially revised in June 2000.
The new law meets contemporary international standards and corresponds
to the principles of free trade in intellectual property.
The scope of copyright protection has been considerably broadened. The
new law covers not only the protection of traditionally understood author's
rights, but also related rights. The law provides for new rights and new
owners of these rights who are able to decide how the outcome of their
work is to be used and are able to derive financial benefits from this
outcome. The new owners include produces of sound and video recordings,
TV, and radio stations as well as artist-performers. The new law provides
protection of intellectual property in the area of science, technology
and manufacturing, including computer programs, industrial designs, etc.
The protection mechanism of computer software is similar to that used
in EU countries.
The terms during which intellectual property rights are protected was
expanded to 70 years after the author's death or, in cases were the copyright
belongs to somebody else, 70 years after its distribution. The law also
provides for a general compensation mechanism of losses incurred by authors,
performers, and producers due to uncontrolled mass reproduction for personal
use (at home). Producers and importers of VCRs, tape recorders, other
audio and video equipment, as well as clean tapes, CDs, etc., must pay
a surcharge to the artists, performers and manufacturers amounting to
up to 3% of their sales income generated by these products.
The new law gives ground for more efficient procedures for enforcing
copyright protection. Illegally obtained benefits may be confiscated and
returned to the true owner. The law also envisages penalties for infringement
of intellectual property rights by fines and even prison sentences for
up to 5 years. The new legislation has considerably strengthened copyright
protection in Poland. It has also contributed to curtailing piracy. Meeting
international standards in intellectual rights protection creates appropriate
conditions for foreign investments making use of property rights.
Moreover, the law regarding protection against unfair competition protects
Polish and foreign companies from such activities as:
· Attempts to convince the public that goods or services originate
form someone other than the true producer or supplier,
· Damaging the company's image by providing unchecked information
to publishing its trade or technological service information, etc.