2021-04-23 | Uncategorized
The World Book and Copyright Day is an annual celebration organized on the 23rd of April. Its originator is UNESCO, and the date itself is symbolic, as two prominent writers died on that day: William Shakespeare and Miguel de Cervantes.
We will focus on the second part of the name of today’s holiday, i.e. the issue of copyright in Polish Law. For the record, it is worth pointing out that in Poland the issue of copyright is regulated by the Act of February 4, 1994. on copyright and related rights. However, some issues are already regulated at the level of EU law – e.g. in Directive 2001/29 / EC of the European Parliament and of the Council of May 22, 2001.
In this article, we will present two interesting issues that probably all of us have encountered in some way.
Ghostwriter – who is he and is he really “okay”?
The first unusual issue that comes to mind when combining the phrases “book”
and “copyright” is there ghostwriting (and more broadly also ghostpainting and ghostcomposing ). This phenomenon does not have a uniform definition in Polish law, but it can be assumed that it is an activity (or a series of activities) that consists in creating a work for the contracting authority, which work will then be disseminated under the name of the contracting authority, not the actual creator.
Thus, the writer-ghost creates a work whose “author” will be officially a third person – the one who commissioned the work.
From the copyright perspective, however, this kind of relationship is definitely more problems than benefits. In order to go to the individual “ailments” that the conclusion of such a contract may cause, it is worth pointing out that in the light of the law in force in Poland, it is impossible to effectively waive non-pecuniary copyrights, and this is the right of the authorship of a work. If we want to do it with any contract, it will be invalid.
Even with such attention, we can say that the foreground is the responsibility for the crime penalized in Art. 115 sec. 1 of the Copyright Act, or plagiarism for short. At this point it is worth adding that the person commissioning the work to aghostwriter always commits plagiarism, because he either appropriates the authorship of the work or misleads as to its actual authorship.
Following the path of a plagiarized work, one may encounter at least two provisions of the Criminal Code that may apply if the contracting authority uses such a work. The first is Art. 272 of the Penal Code, which identifies the crime of extortion of false certification – it will occur, for example, when the awarding entity submits ghostwriter a diploma thesis to obtain a diploma or other academic title. Right next to it is Art. 273 of the Penal Code, which penalizes the use of a forged document (the one from 272 of the Penal Code), i.e. a diploma issued on the basis of a diploma thesis written by someone.
While the responsibility of the contracting authority does not raise any doubts, it turns out that he is alone ghostwriter may also be subordinate to it. Starting from joint responsibility (as an accomplice or helper) in plagiarism by the orderer, to the crime of fraud (286 PC), when the ghost writer himself commits plagiarism by creating a work for the orderer (and thus he will deceive him, because he will pretend to be the author of the ordered work, no being him).
Fair personal use – that is, sharing an account not always and not with everyone.
Recently, numerous websites and internet forums have reported that a well-known international video-on-demand (VOD) portal has started to randomly verify whether people using one account on this portal actually have any relationship with the person to whom this account belongs. The verification took place and takes place by rewriting the code received in the SMS or clicking on the link sent to the e-mail of the account owner.
The new activities of the website (which – by the way – previously did not take any steps to limit the sharing of user accounts) arouse a discussion about what is permitted personal use under Polish copyright law, and whether – and if so on what terms – buyers of works can share them with others.
To answer this issue, please refer to Art. 23 of the Copyright Act, which in sec. 2 indicates that, to the same extent as personal use, you can use single copies of works by a group of people who are in a personal relationship with each other – especially kinship, affinity or social relationship.
As it can be easily seen, the legislator explicitly allowed that persons remaining in permanent (permanent) relationships with each other, which we could say are quite permanent, may use one copy of the work without infringing copyright. It is a desirable and logically justified solution. It is also reflected in practice – it is hard to expect that a sister who wants to read a book that her brother bought will have to purchase a second copy, since she can “borrow it” from the next room.
However, this would not be a problem if the co-use of works covered by copyright was limited in life only to relatives, related persons or persons remaining in another lasting relationship (e.g. roommates renting one apartment).
You can often find offers of access to the VOD portal indicated in the introduction, other streaming platforms or even an application that provides computer games on various advertising and auction portals. The factor attracting buyers is undoubtedly the price – usually much lower than the market price.
Unfortunately – by purchasing access from this type of offer, the condition that the co-users of the account will remain in a lasting relationship with each other will practically never be met – you can even be sure that the users of these accounts are unknown to each other and will never meet. Thus, it should be considered that this infringes the copyrights of the authors of the work that they jointly use, because the limits of permitted personal use are exceeded by making the work available to an unidentified and potentially unlimited number of people.
As you can see, we deal with copyright issues every day, often without even thinking about it. Certain behaviors, even relatively popular or socially acceptable ones, may turn out to be a violation of someone’s copyright. It is worth bearing this in mind.
2021-01-27 | Uncategorized
Today (January 28) we are celebrating the 15th European Data Protection Day . Undoubtedly, this is a good occasion to recall some of the key information on who, on what basis and how should protect personal data
What legal act regulates the matter of personal data protection in Poland?
The General Regulation of the European Parliament on the protection of personal data (hereinafter: GDPR) has been in force for over two years, which unified the rules for the protection of personal data throughout the European Union.
For its full transposition, the Act on the Protection of Personal Data (of May 10, 2018) was adopted in Poland. Based on this Act certain entities bear obligations for data protection, and penalties may be imposed for non-compliance.
Who checks the compliance of procedures with the GDPR in Poland?
Along with the GDPR, a new office was established – the Office for Personal Data Protection. It’s competences include checking the compliance of all activities with the GDPR and the Polish law, indicating defective elements of such processes or imposing penalties for non-compliance.
What are the penalties for violating the GDPR?
The Head of the Personal Data Protection Office may impose a financial penalty of up to EUR 20 million or 4% of turnover in the case of the most serious violations (including data processing rules, the rights of data subjects, or non-compliance with the orders of the supervisory authority).
For the remaining, less serious violations, the fine can reach up to EUR 10 million or 2% of turnover (whichever is higher).
In addition to fines, the Head of the Personal Data Protection Office may issue orders to restore compliance with the GDPR, and even order the processing of data to be limited only to their storage, which may undoubtedly inhibit the company’s development and be more severe than any financial penalty.
It is worth mentioning among the most famous penalties imposed by the Personal Data Protection Office penalty imposed on Morele.net sp. z o. owhich, due to the leakage of customer data and failure to inform on time about this event, were punished with a penalty of almost PLN 3 million, or almost 2 million penalties for Virgin Mobile Polska sp. z o. owhich, as a result of an inspection after data leakage, found a violation of numerous provisions of the GDPR, including in the field of appropriate safeguards or regularity of their verification.
Who is required to apply the GDPR?
The EU rules on the protection of personal data apply to almost all entities that have any connection with activities in the territory of the EU Member States. GDPR must be applied by:
- companies or entities that process personal data as part of the activities of their branch based in the EU, regardless of where (in which place) the data processing takes place or
- enterprises based outside the EU, if they offer goods or services (paid or free of charge) or monitor the behavior of citizens of European Union
Which entrepreneurs do not have to apply the GDPR?
If the entrepreneur has its headquarters (main branch) outside the EU and does not target its offer specifically to EU citizens, it is not subjected to the regulations contained in the GDPR. However, if any of these elements exists (either a branch or an offer addressed to EU citizens), then it is obliged to apply EU rules on the protection of personal data.
It will not be an offer to EU citizens if the entrepreneur’s customers from outside the EU will use his services in the EU (example: An Argentinian citizen uses mobile services provided by an Argentine entity – e.g. a mobile operator – in the EU. in this case, there is no obligation to apply the GDPR).
Does the information on the processing of personal data (information obligation) has to be translated?
The provisions of the GDPR do not introduce an obligation to translate the page containing the “information obligation” into foreign languages (including the languages of the EU countries from which potential buyers may come).
However, we need to pay attention to Theme 39. Of the Regulation and its Article 12 sec. 1. According to them, the data controller (most often: an entrepreneur) should provide the person whose data is processed with information about the processing in the form of clear, understandable, easily accessible and written in clear and simple language.
In the absence of a translation of such a page, if the person to whom the offer is addressed does not use the specified language, he may not be able to read the information, which would mean that the information obligation was not fulfilled.
Such a justification could mean that information obligations should be translated into all languages of the world (taking into account the global reach of the Internet). This has two major drawbacks. First of all – it would be a solution so expensive that only the largest entities could afford it. Second, it would mean hundreds of thousands of additional tabs, with a questionable number of views. So how do you get out of it?
It is assumed that this problem is solved in a fairly simple way: The information obligation should be translated into as many languages as the main website is available in. For example – if the website has a translation into English German, the privacy policy should also be translated into these languages.
It is based on the (quite reasonable) assumption that when deciding to use a website in a specific language, the user should do it responsibly, i.e. knowing and taking into account his / her own language skills. And since they can use a website in a specific language, they should be able to read the information obligation.
It is worth adding that the information obligation should be translated in a professional manner, ensuring internal consistency, linguistic correctness, appropriate language style and connection with the GDPR conceptual grid.
Personal data leak – what’s next !?
Regardless of the security measures taken, there may be situations in which personal data may fall into the hands of unauthorized persons. What must the entrepreneur then do? What can the affected person?
In the event of a breach of personal data security, the administrator must immediately (no later than within 72 hours after discovering the breach) notify the Head of the Personal Data Protection Office. https://www.biznes.gov.pl/en/e-uslugi/00_0889_00 In addition, if an incident carries a high risk of violating the rights and freedoms of persons whose data is processed (e.g. identity theft), such information should be sent to these persons with information on what they can do in this situation.
At the same time, the persons whose data is processed, being informed about the leaked data, have the opportunity to take appropriate actions as soon as possible – for example, change login passwords to various portals (including e-mail and electronic banking), block their payment cards or ID cards (to avoid theft identity and possible incurring obligations, from which they will later have to free themselves).
In summary, the provisions of the GDPR are to protect publicly unavailable personal data, the leakage of which could expose individuals to serious consequences. Even in the event of a leakage of this data, the quick response of the data processor and information to customers can prevent its negative consequences. Therefore, failure to report a personal data breach is penalized much more severely than the mere fact that the leak occurred.
2020-11-23 | Prawo Cywilne, Prawo Cywilne, Prawo Cywilne
The rent is regularly unpaid, because it’s the easiest way!
According to the InfoMonitor Economic Information Bureau, which runs the Debtors Register, the value of Poles’ rent debts has increased by over PLN 28 million over the last six months. For comparison, it is worth adding that in the same period of last year, the debt increase amounted to approximately PLN 3.5 million. In the above register, there are currently over PLN 172 million in rent arrears, of which over 162 million are consumer debt, and only 10 million are debts of entrepreneurs.
The record holder in terms of rent arrears is a 68-year-old resident of Lower Silesia, who has to return almost PLN 544,000. In the category of entrepreneurs, the first place belongs to a person from the Lubuskie voivodeship, whose debt is almost 707,000.
BIG InfoMonitor also conducted a study on financial behavior during the pandemic. The study clearly shows that after the spring quarantine, as many as one in six citizens felt a social consent to not paying their current receivables, and when problems with financial liquidity appeared – even 1 out of 4 people did not pay any of the bills already due.
Reading this study also leads to the conclusion that the receivables for rent and rental of real estate are among the most willingly chosen by debtors payments, the payment of which may be delayed. Next to them, the top three liabilities most frequently paid late are also telephone and utility bills.
The reason for this is the fact that in the absence of sufficient money, unpaid rent does not bring the debtor any unpleasant consequences that he might feel, unlike other media. The service provider will easily be able to cut off access to electricity, gas, Internet or television, while no one will immediately close the debtor’s house just because he is late with paying the rent.
However, the consequences of this line of thinking are distressing and often painful. The amount due for unpaid rent usually increases to a level that is very difficult to deal with later – especially since there are still other obligations to pay.
Property owners and administrators are unable to recover debts.
The Economic Information Bureau reports that the average consumer debt due to unpaid rent is now PLN 19,868. This means that it is over five times greater than the average unpaid telephone bill (approximately – PLN 3,700).
This is mainly because property owners and their administrators use the services of professional attorneys who could effectively help them legally fight an unreliable debtor than companies offering mass services.
It should be pointed out that they practically do not use, for example, pre-litigation notices for payment, the characteristic feature of which is quite significant effectiveness. The debtor – having received such a summons – will immediately see what legal consequences await him if he does not settle his debt. Probably he will not be evicted immediately (it is even more difficult during a pandemic), but information about a possible lawsuit or judicial security of the receivables due to the creditor usually has a good effect on the mobilization of debtors to repay the creditor.
Who is the typical debtor? He’s a middle-aged man.
As many as 1 in 8 respondents admitted that they did not pay (or did not pay) rent. Due to rent, men were more often debtors (13% compared to 10% women) and people aged 25-34 (20%).
Currently, the number of rental debtors is 8,661 and has increased by 284 people since March.
Among the respondents, 27% declared that they were sometimes late with the payment of receivables due to the situation caused by the Coronavirus. They were also afraid of losing financial liquidity and falling into a further, uncontrolled spiral of debt.
It is also worth noting that during the pandemic, arrears for unpaid bills, loans and borrowings increased in almost all age groups (except one). Only people between 18 and 24 have reduced their debt (looking at the last 6 months). However, this is not related to the change in the way money is managed or the repayment of existing debts, and the minimization of own expenses and the shift (in part) to the maintenance of parents or guardians. Young people also put aside their dreams of setting off on their own for the “big world” for later.
Is it possible to effectively recover debts from rent or tenancy?
Experience shows that the amount due for administrative rent or rental is rather high compared to other accounts. Certainly, however, the fact that it is not regulated by the Debtor should not be underestimated. In addition, the most appropriate behavior will be to remind the Debtor of his obligation immediately after failure to meet the payment deadline.
However, life writes various scenarios, including those in which friendly solutions are ineffective. Then it is worth using the services of a professional attorney with extensive experience in the field of debt recovery. The attorney will contact the unreliable debtor on behalf of the creditor, and will send a properly formulated request for payment. Subsequently, it may also take other – appropriate to the circumstances of a given case – steps, for example, directing a claim to a competent court.
Requests for payment and contact with the debtor, made by a professional attorney, are most effective against new, recently incurred debts. Sometimes these actions already lead to the complete repayment of the debt.
Everything indicates that it is not worth postponing the recovery of rent debts and recovering a large amount of money in advance, especially taking into account the current instability.
