Protection of the advertising campaign concept
The advertising campaign is supposed to interest the recipient, encourage them to familiarize themselves with the brand and make a purchase, which is why it is so important when creating it to show creativity, originality and having your own vision. No wonder then that people who create the concepts of promotional activities want to protect their ideas not only against competition, but also against dishonest customers who, after getting acquainted with the concept, implement them without the participation of the originator. How is the concept of an advertising campaign protected in Polish law? We answer.
Copyright and protection of the concept of an advertising campaign
The entire concept of an advertising campaign is often considered a work and therefore is combined with protection under the provisions of the Act on Copyright and Related Rights. However, this is not true, as we can deduce from Art. 1 of the Copyright and Related Rights Act:
Art.1. 1. The subject of copyright is every manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and manner of expression (work) (...).
21. Only the expression may be protected; discoveries, ideas, procedures, methods and principles of operation as well as mathematical concepts are not protected (...).
Although undoubtedly the idea of a promotional campaign usually meets the criteria listed in point 1 of the said provision - it is man-made, has a creative and often original character, but as long as it remains a concept not preserved on any material medium, it cannot count on copyright protection. This is confirmed by the judgment of the Court of Appeal in Katowice of October 9, 2012, file ref. V ACa 175/12, in which we can read that (...) fromand a work should be considered any manifestation of creative activity of an individual nature, established in any form, regardless of value, purpose and manner of expression. (...) Contrary to the work understood in this way, there are ideas (ideas) that do not contain any way of expression. Among them, ideas for an advertising campaign are commonly mentioned.
The protection of the concept of an advertising campaign is different if it is written or otherwise recorded on a tangible medium. Then, as long as it meets the criterion of originality, the concept of marketing activities will be protected in the same way as the work. The consolidation of the idea itself is especially important in this context. Although in theory the form of the record is not important, it is worth doing it carefully and choosing the most material way - it can be a presentation, a detailed description in the form of a document or a sketch, but it is important that the work fits on a material medium.
So if the author of the advertising campaign concept presents his idea to a potential client over the phone, and the latter uses the idea, the originator will have no legal means from the Copyright and Related Rights Act to assert his rights. However, if he presents his idea in the form of an accurate plan and visualization, it will be protected by the provisions of the aforementioned legal act.
This means that in the event of a breach of the author's rights, Art. 115 of the Copyright and Related Rights Act:
Article 115. 1.Whoever appropriates the authorship or is misleading as to the authorship of all or part of someone else's work or artistic performance, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 3 years.
2. The same penalty shall apply to anyone who disseminates someone else's work in its original version or in the form of an elaboration, artistic performance or publicly distorts such a work, artistic performance, phonogram, videogram or broadcast without giving the name or pseudonym of the author. (...)
Important in the context of implementing an advertising campaign without the consent of the originator is also Art. 116 of the same legal act:
Art. 116. 1. Whoever, without authorization or contrary to its conditions, distributes someone else's work in the original version or in the form of an elaboration, artistic performance, phonogram, videogram or broadcasting, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
2. If the perpetrator commits the act specified in par. 1 in order to gain financial benefits, shall be punishable by imprisonment for up to 3 years.
3. If the perpetrator committed the offense specified in par. 1 permanent source of income or criminal activity referred to in paragraph 1. 1, organizes or manages it, shall be punishable by imprisonment from 6 months to 5 years (...).
In addition, the author of the project may claim his rights under Art. 79 of the same Act:
Art. 79. 1. The entitled person whose proprietary copyrights have been infringed may request from the person who infringed these rights:
1) failure to infringe;
2) remove the effects of the violation;
3) redressing the damage caused:
a) on general terms, or
b) by payment of a sum of money in the amount corresponding to twice, and in the event of a culpable infringement - three times the appropriate remuneration that would be due at the time of its investigation as a consent to use the work by the right holder;
4) release of the obtained benefits.
2. Regardless of the claims referred to in para. 1, the entitled person may demand a single or multiple announcement in the press of a declaration of appropriate content and form or disclosure to the public of part or all of the court ruling issued in the case under consideration, in the manner and to the extent specified by the court.
3. The court may order the person who infringed the proprietary copyrights, at their request and with the consent of the proprietor, if the infringement is not at fault, to pay an appropriate sum of money to the proprietor, if the infringement would be disproportionately severe for the infringing person.
4. When deciding on an infringement of the law, the court may adjudicate, at the request of the entitled person, about unlawfully manufactured items and the means and materials used for their production, in particular, it may decide on their withdrawal from the market, awarding the entitled to compensation or destruction. When deciding, the court takes into account the gravity of the infringement and the interests of third parties.
Nevertheless, it is not worth limiting the protection of the concept of an advertising campaign only to the Copyright Act - intellectual property law is a branch of law in which the jurisprudence is not always uniform and although in our opinion the concept of marketing activities may meet the characteristics of a work, the court's judgment may be inconsistent with ours. expectations.
Protection of the concept of a marketing campaign in civil law
We can also protect the concept of a marketing campaign on the basis of civil law, especially art. 23 of the Civil Code:
Art. 23. Human personal rights, such as, in particular, health, freedom, honor, freedom of conscience, name or pseudonym, image, secret of correspondence, inviolability of the home, scientific, artistic, inventive and rationalizing creativity, remain under the protection of civil law, regardless of the protection provided for in other regulations.
In the provision cited, the concept of artistic creation is of key importance. The Civil Code does not contain such detailed regulations as the Act on Copyright and Related Rights. Therefore, if the idea for an advertising campaign does not meet the criteria of the work contained in this legal act, the creator may indicate that his idea is the result of an artistic activity protected by the provisions of the Civil Code.
It is also important in this context to assess whether copying an idea caused tangible damage on the part of its author. If so, he may claim damages from the other party pursuant to Art. 415 of the Civil Code, which says that anyone who caused damage to another person is obliged to repair it.
Copying the concept of an advertising campaign as an act of unfair competition
The protection of the concept of a marketing campaign is also carried out on the basis of competition law. Also in this case, the originator may find general clauses contained in acts in this field of law, especially in Art. 3 of the Act on Combating Unfair Competition:
Art. 3. 1. An act of unfair competition is an act that is against the law or decency, if it threatens or violates the interest of another entrepreneur or client.
If the infringement of the originator's rights to the idea for advertising activities took place in the course of business, i.e. the parties concluded a marketing agreement or a preliminary agreement and both parties (or at least the originator) are entrepreneurs, the author of the concept may refer to the aforementioned provision. In this context, copying an idea constitutes a violation of the interest of its author and an act contrary to morality.
The use of someone else's idea for an advertising campaign without the author's consent does not meet the conditions of an act of unfair competition threatened with criminal liability, however, the originator may claim his rights under civil law. Art. 18 of the Act on Combating Unfair Competition:
Art. 18. 1. In the event of an act of unfair competition, an entrepreneur whose interest has been threatened or infringed upon may request:
1) to refrain from unlawful actions;
2) removing the effects of prohibited activities;
3) submitting a single or multiple declaration with appropriate content and in an appropriate form;
4) repairing the damage caused, on general terms;
5) issuing unjustified benefits, on general terms;
6) adjudication of an appropriate amount of money for a specific social goal related to supporting Polish culture or protection of national heritage - if the act of unfair competition was culpable.
2. The court, at the request of the entitled party, may also adjudicate on products, their packaging, advertising materials and other items directly related to the commission of an act of unfair competition. In particular, the court may order their destruction or include them towards compensation.