@article{f8e9d6a1-fc40-4403-8439-846ac50a41d6,
author = {Damian Szczepaniak},
title = {The Penal Provisions of the Polish Copyright Law of 1926.  The History of Its Creation, Its General Characteristics, and Art. 61 and Its Significance for Further Regulations},
journal = {Cracow Studies of Constitutional and Legal History},
volume = {Volume 11 (2018)},
number = {Volume 11, Issue 4},
year = {2018},
issn = {2084-4115},
pages = {541-565},keywords = {penal provisions of copyright law; Codification Commission; copyright; penal law; Second
Polish Republic},
abstract = {This article presents the issue of the penal law provisions concerning copyright protection in the act of 1926. Apart from outlining the history of the creation of the penal law provisions of this act and their general characteristics, particular attention has been placed on Article 61 and the interpretative problems resulting from this regulation as well as on the demonstration of its influence on Article 59, Section 2 of the Copyright Law of 1952, and on Article 115, Section 3 of the Copyright and Related Rights Law of 1994. The analysis of the penal provisions of the act of 1926 has shown that they were not based on any consistent theoretical concept analogous to the one that Fryderyk Zoll created in the context of civil law. Due to the broad and vague phrasing of Article 61 – the basic regulation which allows pressing penal charges in cases of copyright infringement – doubts have arisen concerning the object of penal protection, in particular, whether it refers only to the author’s economic rights or to moral rights as well. The problem is also related to the fact that despite the directives of the Penal Law Section of the Codification Commission, no catalogue of the types of copyright infringement requiring penal sanctions was formulated in the act. Willing to present the penal law regulation synthetically, and encompassing various kinds of copyright infringement similarly to the way civil law regulations were presented, the Codification Commission did not take the specific nature of penal law into sufficient consideration, which actually left it to the courts to decide whether a given type of interference in another person’s copyright was liable to penal sanction; that, in turn, was against the principle of nullum crimen sine lege certa. Moreover, questions concerning compliance with the principle of the determinacy of punishable acts arise while analysing the abovementioned penal provisions of further copyright laws. The problem was also considered by the Constitutional Tribunal, which examined the compatibility of Article 115, Section 3 of the Copyright Law of 1994 and Article 42, Section 1 of the Polish Constitution. This demonstrates that the problem of the scope of the penal liability object – raised by the Penal Law Section of the Codification Commission, seemingly marginalised during further works on the project, which resulted in the adoption of regulations not fulfilling the requirements of the guarantee function of penal law - has not been satisfactorily resolved to this day, despite the substantial efforts of the legislature undoubtedly visible in the act of 1994.},
doi = {10.4467/20844131KS.18.041.9483},
url = {https://ejournals.eu/en/journal/kshpp/article/przepisy-karne-ustawy-o-prawie-autorskim-z-1926-roku-historia-powstania-charakterystyka-ogolna-art-61-i-jego-znaczenie-dla-pozniejszych-regulacji}
}