30.11.2021

Is it permitted to gain access to personal data of subscribers using the Internet who infringe the author’s economic rights? Serious doubts on this issue will be resolved by the Supreme Court.

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.

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