Copyright infringement

Copyright protection only applies to works, which are products of human activity characterised by creativity and individuality. Not everything that people create has the status of a work. In addition, subject matter created with no human involvement cannot be considered work either.

Therefore, neither moral nor economic rights accrue to trivial, typical creations, determined by the technical functions or produced without human creative input (for example, produced by an animal or natural forces). Therefore, creations produced using artificial intelligence tools can only be considered as a work within the meaning of copyright law if it can be established that a human being has made a creative contribution to the creation of such a work.

*Jason Allen’s AI-generated subject matter, “Théâtre D'opéra Spatial”, (US Copyright Office refused to register it as a work)

In practice, it is often difficult to assess with certainty whether a given creation is man-made and, if so, whether it meets the creativity requirement. There is no register of works, similar to the registers of exclusive industrial property rights.

Copyright protection may only be granted to the expression (form) of the work, and not to discoveries, ideas, procedures, methods and principles of operation or mathematical concepts. This is an important limitation. For example, the use of scientific discoveries as such, never constitutes copyright infringement.

Assessing whether a given object is a work is a preliminary step in determining whether copyright infringement has occurred. In infringement case law, this is the first issue the court needs to examine. It is worth noting at this point that if only a fragment (part) of a work is used, infringement can only occur if the fragment itself meets the criteria of a work.

AUTHOR’S ECONOMIC RIGHTS

Author’s economic rights is a broadly defined term. These rights are generally vested in the author and include the exclusive right to use the work in all fields of exploitation. An important exception to the copyright monopoly are the various forms of fair use listed in the Copyright and Related Rights Act, such as personal use, the right of quotation, parody or pastiche. If a particular use falls within the scope of the permitted use, no permission is required. However, in such a case it is necessary to mention the name of the author and the source. Permission is also not required if the author's economic rights to a work have expired, which occurs 70 years after the death of the author. In other cases, the permission of the author or other rights holder granted through a licence agreement, is necessary to legally use the work. Otherwise, the use of the work will result in a copyright infringement.

AUTHOR’S MORAL RIGHTS

Moral rights help to preserve the author's ‘bond’ with the work and in particular include the right to:

Infringement of the author's moral rights occurs when an action violates the author's bond with the work. Whether or not this bond has been breached must always be determined on a case-by-case basis.

Moral rights – unlike economic rights – do not expire and are not subject to waiver or transfer. After the author's death, these rights are exercised by the author's spouse and, if the author had no spouse, successively by descendants, parents, siblings, sibling descendants (unless the author has decided otherwise).

Importantly, once the economic rights have expired, the use of the work by itself (including commercial use) does not constitute an infringement of the author’s moral rights. The idea of moral rights is not to prevent the use of a work (this is the purpose of time-restricted economic rights), but to ensure that the work is always used with respect for the ‘bond’ of the author with his or her work. This mainly concerns the indication of authorship of the work and the prohibition to infringe the integrity of the work.

Examples of copyright infringement:

© the use for business advertising purposes of a work made available under one of the Creative Commons licences, the terms of which permit only non-commercial use of such work (not all types of Creative Commons licences permit commercial use);

© publication of an image downloaded for a fee from a paid stock platform, if the image has been uploaded to that platform without the consent of the right holder (the possible contractual liability of the stock platform towards its user is a separate issue).

Examples of moral rights infringement:

Often in the public sphere we are dealing with adaptations in which the creative and individual elements of both the original (parent) work and the adaptation itself are manifested. These include, for example, book translations, music covers or film adaptations of literary works. While the mere creation of an adaptation does not require the permission of the author of the original (parent) work, the use of such an adaptation does.

Example: Publication of a translation of a poem by a contemporary poet requires the permission of the author. In turn, the use of the adaptation (by other people) requires the consent of both authors: the author of the parent work and the author of the adaptation.

The right holder, in the event of infringement of his or her author's economic rights, is entitled to demand:

- on general terms (i.e. those set out in the Civil Code),

- a lump sum compensation of twice the applicable remuneration (in the case of a lump sum, the right holder does not have to prove the amount of damage);

In general, it can be said that the purpose of the above claims is:

1) preventing further infringements,

2) ensuring that the benefits unlawfully obtained by the infringing party are returned to the right holder and that the damage caused is compensated.

The determination of whether copyright infringement has occurred is now not dependent on the fault of the perpetrator. What is crucial is to establish that the actions of the infringing party were unlawful (there was no contractual or statutory basis for the use of the work).

It should be noted that not only direct perpetrators (the persons who committed the infringement) but also indirect perpetrators (persons who induced, aided or knowingly profited from the harm) can be held liable. However, the recovery of damages from indirect perpetrators requires proof of their fault.

Claims may be brought by both the holder of the author’s economic rights and the exclusive licensee (if the agreement does not provide otherwise), as well as the collecting society to the extent that it manages the copyright or related rights.

In the case of moral rights, the mere threat of infringement of these rights by another's action gives rise to a claim on the part of the right holder to stop this action. In the event of an infringement, the right holder may additionally demand:

The action may be brought by the author whose moral rights have been infringed and, after his or her death, by the author’s spouse and, if the author had no spouse, successively by descendants, parents, siblings, sibling descendants (unless the author has decided otherwise). The relevant authors' association or collecting society also has a right to bring the action before the court in this respect.

It is worth bearing in mind that copyright infringement can have consequences not only in the civil law sphere, but also serious criminal consequences, including in some situations 5 years' imprisonment for the perpetrator.

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