Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

In general, the author is the owner of a copyrighted work. The rights to the copyrighted work consist of the economic and author’s personal copyrights and different rules apply to these two categories of rights.

The authors always retain their personal rights, which protect their personal ties to the work and which protect their personal interests. Such rights cannot be transferred nor waived.

Economic copyrights to the work are generally granted to the author as well, who can freely transfer them. These rights are also inheritable. The author’s economic rights allow him to derive financial benefits from the work, for instance by transfer or granting a licence to use the work. However, there are exceptions to the rule (eg, ‘employee works’ (if the employer accepts the work), or in the case of computer programs created by employees (with no need for acceptance of work)).

Employee and contractor work

May an employer own a copyrighted work made by an employee?

Yes. Generally, the employer whose employee created the work within his duties as an employee, acquires the author’s economic rights upon acceptance of the work. Author’s personal rights, on the other hand, remain with the employee forever; however, the contract might restrict their performance.

The provisions on employee's works only apply to employees under an employment contract. The creation of such work must be a part of the author's employment duties in the employment contract for the economic copyrights to transfer to the employer. An employment contract must be in writing. If the ‘employer’ and ‘employee’ have a contractual relationship other than employment contract (eg, contract for performance of specific services), by default, the copyright remains with the employee, but the parties may explicitly agree otherwise in writing.

Economic copyrights are not automatically transferred to the employer on the moment the work is created. It happens when the work is accepted by the employer. If the employee refuses to deliver such work to the employer, it would be a breach of employment duties, subject to disciplinary action against the employee. The burden of proving that it has accepted the work lies on the employer. This does not apply to computer programs, which do not have to be accepted to belong to the employer.

Special rules apply to scientific works. If the employees create scientific work as part of their work for a scientific institution, the employer has only the right to: priority of publication, to use the scientific material contained in the work and to make the work available to third parties within the limits arising from the circumstances of the creation of the work.

May a hiring party own a copyrighted work made by an independent contractor?

Yes. It is possible if the contract between the hiring party and the independent contractor expressly includes the transfer of economic copyright resulting from the performance of the contract. The contract must be in writing and should specifically state the moment of copyright transfer and the fields of exploitation that the rights are transferred on. Failure to conclude the contract in written form renders the transfer of economic rights null and void.

If the agreement does not regulate these issues, the copyright remains with the independent contractor. This does not prevent parties from concluding another written copyright transfer contract. An author’s personal rights, on the other hand, are non-transferable. However, the author may contractually agree to restrict the performance of his or her moral rights to particular works.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes – copyrighted work may be co-owned, both by persons and by entities.

If there is no agreement or court decision to the contrary, it is assumed that each co-author’s share of the work is equal. Each co-author may freely exercise the copyright to its autonomous part of the work, as long as it does not prejudice the rights of other co-authors, as well as pursue claims for the copyright infringement to the whole work.

Exercising the copyright to the whole work requires the consent of all co-authors or a decision of a court in the absence of such consent. Polish Civil Code provisions on fractional joint ownership apply accordingly to copyright co-ownership of economic copyrights.

Transfer of rights

May rights be transferred? If so, what rules and procedures apply?

Economic copyrights can be transferred. An author’s moral rights cannot be transferred; however, the author can contractually oblige him or herself to restrict his or her performance of personal rights.

The contract for copyright transfer must be in writing, otherwise it would be null and void. If the contract does not explicitly state it transfers economic copyrights, it would be deemed a copyright licence. It is important that the contract must explicitly include fields of exploitation that the economic copyrights are transferred on – the copyrights are transferred only on these fields. Economic copyrights to future fields of exploitation (not known to the parties on the date the contract is concluded) cannot be transferred. Unless the contract explicitly states otherwise, the previous rightsholder is entitled to the remuneration for copyright transfer.

Licensing

May rights be licensed? If so, what rules and procedures apply?

Economic copyrights can be licensed. Author’s personal rights cannot be licensed; however, the author can contractually oblige him or herself to restrict his performance of personal rights.

The copyright licensing contract must explicitly include fields of exploitation that the economic copyrights are licensed on – the copyrights are licensed only on these fields. Economic copyrights to future fields of exploitation (not known to the parties on the date the contract is concluded) cannot be licensed. Unless the contract explicitly states otherwise, the previous rightsholder is entitled to the remuneration for copyright licence.

Licences may be exclusive or non-exclusive under Polish law. Under the exclusive licence, the licensor can still use the licensed work, but parties may add provisions to the contrary, where the licensor undertakes not to use the licensed work during the licence term. If the licence does not include the right to grant sub-licences, the licensee cannot grant sub-licences.

The copyright licence contracts do not have to be concluded in writing, but the exclusive licence must be in writing (otherwise it would be deemed as non-exclusive).

Polish law does not have a concept of a perpetual licence. Under Polish law, such a licence would most likely be interpreted as a licence granted for indefinite time, which can be terminated within contractual time limits or – if there are no provisions on the termination in the contract – one year in advance at the end of a calendar year. In contrast, licences granted for a definite period of time can be granted for a maximum period of five years and cannot be terminated if the contract does not include a provision on this matter. After five years (if they have been granted for more than five years), they automatically change to a licence granted for an indefinite period.

Are there compulsory licences? What are they?

There are no compulsory licences under the Act of 4 February 1994 on Copyrights and Related Rights.

Are licences administered by performing rights societies? How?

Licences may be and often are administered by collective management organisations (CMOs) in Poland. Their organisation is governed by the Act of 15 June 2018 on the Collective Management of Copyright and Related Rights.

Under this Act, the rightholder is able to conclude an agreement with the CMO for collective management of copyright and related rights, which may cover all of his or her works or specific works (which may also include future works), all or specific fields of exploitation and also describes territories that it covers. Under such agreement, the CMO represents the right holder and grants licences (including multi-territorial licences, if it has the mandate in this scope) for the use of his or her works in the name of the right holder and then shares the profits (remuneration) with the right holder. CMOs are required to post on their websites draft licence agreements used by the CMOs.

Termination

Is there any provision for the termination of transfers of rights?

Under Polish copyright law (article 56), the author may rescind or terminate a copyright transfer of a licence contract due to their vital creative interests. If, within two years of such rescission or termination the author intends to start using the work, they shall be obliged to offer such use to the acquirer or licensee, setting them a suitable time limit for this purpose. If the contract is terminated or rescinded after the work has been accepted by acquirer or licensee, the author may be obliged to pay the costs incurred, unless it has been terminated or rescinded due to circumstances beyond the author’s control. This provision does not apply to contracts where the transferred or licensed work is an architectural work, architectural and urban planning work, audiovisual work or a work ordered within the scope of their exploitation in audiovisual work, as well as to computer programs.

Under article 57, the author is entitled to rescind or terminate the contract if the acquirer or licensee has not started to disseminate the work within the agreed time limit if they have undertaken to do so. If there is no agreed time limit, the author may rescind or terminate the contract within two years from the acceptance of the work and may claim the damage to be repaired after the expiry of additional term, not shorter than six months. If the work has not been made available to the public due to circumstances attributable to the acquirer (or the licensee), the author may claim double the remuneration specified in the contract instead of actual damages, unless the licence is non-exclusive. These provisions do not apply to architectural and architectural and urban planning works.

Under article 58 of the Act, the author may rescind or terminate the contract if the work is made available to the public in an unsuitable form or with changes to which the author is entitled to rightfully object. The termination or rescission can happen after the author has called for the cessation of the infringement to no effect. The right to remuneration under the contract remains after the termination or rescission.

If there are no contract provisions to the contrary, in all cases parties can request the other party to return everything they received under the contract.

Parties are also free to set in the contract additional circumstances when the contract may be terminated.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

No.