NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE

A. PRIMARY AND SECONDARY LAW

The Enforcement Directive was implemented in Poland by the Law of May 9, 2007 amending the Copyright Act and other statutes. This law amended several statutory acts concerning intellectual property rights, i.e.

The Enforcement Directive had been enacted before Poland joined EU as a Members State on May 1, 2004.

B. TRANSPOSITION ISSUES

At the time of the Enforcement Directive's implementation, the Polish legislator believed that Polish law already met a significant part of the objectives required, mainly with regard to procedural issues. This was not always correct. The legislator seems to have, in particular, misunderstood the concept of intermediaries and the legal grounds for imposing obligations on them. The provisions on damages in copyright law have also proven problematic. For a reason that has not yet been explained satisfactorily, the Polish implementation has two distinct forms. The same provisions of the Enforcement Directive have been given different treatment in copyright law and in industrial property law. While in some cases, e.g. when it comes to damages calculated as a multiplied license fee, these differences could be traced back to the pre-existing regulations, they are more difficult to explain with regard to concepts that had not been applied in Polish law prior to the implementation. A formal reason for this divergence could have been the fact that different ministries were responsible for the implementation in copyright and in industrial property law. The differences between the Copyright Act and the Law on Industrial Property have been mirrored by the statutory acts covering other IP rights – both the Database Act and the Plant Variety Act follow the CA template (even though it can be argued that plant variety rights are in essence a type of industrial property).

Despite the fact that the Directive contains measures that are clearly procedural in nature under Polish law, the implementation only amended statutes covering IP rights. Changes to the Code of Civil Procedure (CCP) have been extremely limited.