Category: News

We are currently working on a case for one of our Clients regarding a call for information, where a controversial legal issue has arisen and has now been submitted for decision to the Supreme Court. The issue concerns providing access to subscribers’ data who infringe the author’s economic rights and is based on recently amended provisions of the Code of Civil Procedure (CCP) that introduced the so-called ‘intellectual property proceedings’.

 

However, a court of first instance dismissed our Client’s petition, holding that even though the proceedings proved that the Client was entitled to assert the claims referred to in Article 79(1) of the Copyright Law, the petition could not be upheld under the currently applicable provisions (i.e., Article 479¹¹⁵ of the CCP). In the opinion of the court, the changes in the laws constituting the basis for the petition, made by the Act of 13 February 2020 amending the Code of Civil Procedure and certain other acts (Journal of Laws of 2020, item 288), decidedly limited the scope of information that could be made available when compared to the legal situation before the amendment of, inter alia, Article 80 of the Copyright Law. The court found that currently, there are no grounds to demand access to personal data of subscribers using Internet access services in violation of the author’s economic rights.

 

The JLSW Law Firm filed a complaint against the above decision, indicating that the purpose of introducing the new regulations was the lack of effectiveness in pursuing claims by entitled parties against infringers of intellectual property rights. The problem was the low effectiveness of legal remedies available to them, especially at the pre-trial stage. Therefore, the legislator’s goal was to systematise and create a uniform legal instrument that will enable the rights holder to obtain additional information on the infringement of these rights. In addition, another goal was to not to restrict access to information and the release of documentation to persons whose author’s economic rights have been infringed.

 

As a result of a complaint filed by our Law Firm, the Court of Appeal in Warsaw, VII Commercial and Intellectual Property Division, decided to present a legal issue raising serious doubts to the Supreme Court for resolution:

“Can the court, based on Article 479¹¹⁵ §1.1 of the CCP, when taking into account a request of an entitled party for providing information (referred to in Article 479¹¹³ of the CCP) oblige the entity indicated in Article 479¹¹⁴ item 2 of the CCP to provide information on the names and surnames of producers, manufacturers, distributors, suppliers and other previous holders from or for whom the goods or services were acquired or provided, as well as of the anticipated wholesalers and retailers of those goods or services, in the case of a user of Internet access services using an IP address?” And, in case of a negative answer: “Can the above-mentioned information be made available under Article 479 ¹¹⁵ §1 item 3 of the CCP?”

 

At present, the case has been registered under file reference no. III CZP 59/21 and is waiting for consideration. Undoubtedly, the answer to the above question and the adoption of a resolution by the Supreme Court will allow for correct interpretation of the above provisions and will significantly improve possibilities of obtaining information by entities whose author’s economic rights have been infringed.

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law will impose a new obligation on businesses to have a ‘whistleblowing’ system in place already in December this year. The directive is commonly referred to as the ‘whistleblower directive’, as it is intended to provide protection to individuals working in the private or public sector who report or disclose information about a breach of law.

 

The obligation to have a reporting system in place will not only be imposed on public administrations or social organizations but also legal entities in the private sector. Beginning from 17 December 2021, it will apply to companies with 250 or more employees. However, for entities with a headcount of 50 or more, the obligation to report breaches will come into effect on 17 December 2023. The situation is slightly different for businesses involved in financial market regulation or AML – those are to be subject to the obligation to implement whistleblower protection requirements regardless of the number of employees.

 

In fact, the concept of whistleblowers is defined quite broadly. According to the directive, a whistleblower can be an employee, a self-employed person, a shareholder or partner in companies (and a member of their bodies), a volunteer or a trainee. Such a person will be protected, in particular, if they have reported a breach through one of the channels provided for in the directive.

 

The directive provides that there will be three channels for reporting breaches in the Member States. The first of these will be internal reporting, which takes place within the organization in which the whistleblower works. Alternatively, there will be external reporting, (i.e., to a relevant outside authority). The last channel is called ‘public disclosure’, which is when the information is made public.

Whistleblowers are to be afforded a number of remedial measures – notably a prohibition on disclosure of identity unless the whistleblower gives consent.

 

The remedies provided for in the directive are also intended to protect against possible retaliation against the reporting person. They ensure that a whistleblower is not sent on unpaid leave, suspended, withheld from promotion or dismissed.

However, it should be noted that we are currently waiting for a draft Polish law which will undoubtedly dispel the remaining uncertainties and help our clients prepare for the upcoming changes.

Incidentally, we are pleased to inform the readers about the recent success of our law firm. In the 35th issue of Newsweek, the managing partner of our firm, legal adviser Tomasz Janaszczyk, had the pleasure to introduce the readers to the planned changes and present the benefits resulting from them. We invite you to read the article.

 

The JLSW Law Firm has once again been recognised in the prestigious ranking of ‘The Legal 500’. For the year 2021, we have been recommended in the area of construction law.

The Legal 500 is a prestigious, international ranking of law firms. For more than 30 years, based on an in-depth, factual analysis of conducted projects and clients’ opinions, it has been identifying and recommending the best specialists in more than 20 areas of law and 150 jurisdictions every year.

To be ranked, a firm must describe its achievements over the past year and provide a list of contacts who can recommend the firm based on their experience. The Legal 500 specialists use independent and constantly improved research tools to establish a hierarchy of the best law firms in each country, taking into account the specialisation of their team on the basis of an analysis of orders and conversations with clients.

Using a comprehensive research program updated every year allows The Legal 500 to reflect the current situation in the legal services market in a particular country and in a particular field very accurately. The ranking is, therefore, a reliable source of information on professional and trustworthy specialists – which is extremely valuable when, for example, looking for someone to cooperate with from a different region of jurisdiction.

 

Below the link to the article on Legal Netlink Alliance page:

https://www.legalnetlink.net/news/jlsw-construction-practice-ranked-in-2021-legal-500