Subject of copyright protection, i.e. what is protected by copyright?


Copyright - definition of a work

The subject protected by copyright is a work, i.e., in accordance with Art. 1 of the Copyright and Related Rights Act, any manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and manner of expression.

The provision contained in Art. 1 of the copyright law not only provides a definition of a work, but also lists an exemplary catalog of the results of creative human activity. This catalog is not exhaustive, which means that apart from the categories listed there, other types of works may also be created.

The subject of copyright is therefore, inter alia, songs:

1) expressed in words, mathematical symbols, graphic signs (literary, journalistic, scientific, cartographic and computer programs),

2) artistic,

3) photographic,

4) violin makers,

5) industrial design,

6) architectural, architectural, urban and urban planning,

7) musical and verbal-musical,

8) stage, stage and music, choreography and pantomime,

9) audiovisual (including film).

The concept of a work refers only to intangible goods, therefore it should not be confused with its carrier, i.e. the thing on which the work was recorded (this thing is a separate subject of law - property rights).

Example 1.

A CD / DVD is a carrier of a computer program, canvas - images, paper / book - novels.

Copyright - features of the work

In order for a work to be considered a work, it should have the following properties:

1. First of all, a work must be the result of the work of a human (creator). Thus, nature's creations (e.g. fancy shell shapes, patterns on the glass formed under the influence of frost), and works created by animals (paintings painted by chimpanzees, even if you can buy them) will not be protected by copyright.

2. The work must be established, that is, it must be externalized by the creator, communicated to other people. This does not mean, however, that the piece should reach them. It is enough for the author of the novel to write it and the painter to paint the picture. The creator is not obliged to show the results of his work to others, it is enough that the perception of the work is possible at all (because the work has taken a material form). In some situations, the work does not have to be recorded - the work is established even in the case of musical improvisation or oral transmission. In this case, the creation of copyright does not depend on the recording (recording) of the work on any material medium, but it is necessary for third parties to witness the performance of such a work. It should be emphasized that until the work is communicated (i.e. when it is only in the mind of the creator), it will not be protected.

3. The work must have creative features of an individual character. Therefore, it should be original, marked with the personal "stigma" of the creator. We deal with originality when a new product of the mind of man arises, which is his own intellectual creation. For a work to be original, it is enough for its author to be convinced of the novelty of the work (novelty in a subjective sense) at the time of its creation. Individuality, on the other hand, manifests itself in the personal character of the work, its one-off and uniqueness - that is, in principle, it can only come from one person (which is a slightly simplified reasoning, as there are cases of parallel works, the result of which is the creation of identical or almost identical works as a result of completely a separate, independent creative process - such cases, however, are considered individually).

The Supreme Court has repeatedly commented on the work, according to which it is "every manifestation of spiritual activity bearing the trait of personal activity, every original human thought, specifically formulated in an independent form" (Supreme Court's judgment of 23 June 1936, IK 336/36), "a work is every study (...) in which the creative work of the author manifests itself, that is, when thanks to ingenuity and individual approach, the work has acquired its original form" (judgment of the Supreme Court of 27 March 1965, ICR 39/65). In order to answer the question whether we are dealing with a work, one should consider:

  • would another person be able to perform it in the same way - we will receive an answer whether the work has an individual character and whether creative activity was necessary to create it,

  • whether the result of a given work depends on the function or purpose, or whether it allows for any shaping of the workflow and its result, and, consequently,

  • can it be unequivocally stated that people with similar qualifications would ultimately achieve a similar result - is it statistically probable that another person would achieve an identical or similar result?

"A work resulting from routine work or a result achievable by persons undertaking the same task is not of a creative nature" (judgment of SA in Poznań of 18 May 2006, I ACa 1449/05).

Copyright and the way of expressing the work

The jurisprudence of the courts clearly indicates that even a small level of originality of a work results in copyright protection - there were cases where even a work safety manual, a calendar or a user manual were considered a work. Why? Because the copyright is protected because of its form, not its content. A calendar whose content is not creative at all can be protected if it is presented in its original and creative form. A work may even be a set of regulations on running a business - although normative acts are not protected by copyright, the individual character of a work may be manifested in the original selection of materials and their ordering. Therefore, protection will not apply to individual provisions, but to original elements (selection and prioritization of content).

The protection of the form of the work results from Art. 2 of the copyright law, according to which only the manner of expression may be covered. Discoveries, ideas, procedures, methods and principles of operation, and mathematical concepts are not protected. The way of expression is the result of creative work, the form of the work. The very process of creative work, the method of obtaining a work, or even a newly created creative technique, style, manner or the most original idea are not protected by law. Also, the substantive content of the work is not protected, at least not under copyright (it can be protected, for example, by industrial property law thanks to patents). In the case of a written (e.g. scientific) work, protection will not therefore concern the substantive content, but, for example, the structure of the text, the order and the way of presenting the arguments cited in support of the presented theses, the graphic elements used.

The creation of each work begins in an unprotected idea (concept), which then becomes concrete, acquires its individual expression, and is given a form. And it is this form that is protected, not the idea itself. Non-externalized ideas or ideas lack the "form" necessary to give them the protection that allows them to be perceived, and when given form, they often lack the necessary individuality. Many ideas, on the basis of which even masterpieces were created, were already a public good. It should be emphasized that extending protection to ideas, ideas and methods would impose restrictions on the freedom of action and creative freedom. Ideas, abstract ideas, methods, or scientific theories and doctrines must remain free in the interest of society and be considered part of the common good, a public domain that can be freely used.

Example 2.

Many paintings depicting the Last Supper have been created - it is a commonly known motif, interpreted in various ways by various artists (Leonardo da Vinci, El Greco, Tintoretto, Giotto, Nikolai Gay), but it is not protected in itself. Only the form of presenting this motif will be protected - that is, the composition of the image, space (the way characters, objects, objects, details are presented), the characteristic use of colors, chiaroscuro, etc.

Example 3.

There are many scientific works on copyright. In most cases, the theses presented in these works have been widely known for years. In every book on copyright, there will be a chapter on what a work is. So we are dealing here with an idea, an idea, a scientific theory - they are not protected. The way of presenting copyright issues will be protected: the structure of the text, presented arguments in support of theses.

Example 4.

Where is the "limit" of the idea? When does an idea begin to have its own form, an individual, creative character? Is the idea of ​​a book about an orphan child who leaves his hated relatives to find happiness elsewhere a plagiarism of the Harry Potter story? As long as it does not duplicate the plots, events and characters described in J.K. Rowling, it's not. Whenever we think that we are dealing with plagiarism, we need to investigate how likely it is that the work suspected of plagiarism could have arisen had the work plagiarized had not existed.

Example 5.

Two employees, each from a different company, developed computer programs aimed at recognizing speech and writing the words spoken by the user of the program in a word processor. Both programs work as intended and therefore fulfill their purpose. Can any of the companies accuse the other of plagiarism? If neither employee actually used the other's work by copying their source code, then no. The idea of ​​the program is not protected. After all, there are many speech recognition programs on the market. The subject of protection in this case will be the form of the work, i.e. the program code, and not the idea or idea (and in particular not the language used to write the program, algorithms or rules of communication with the hardware - all these are commonly known). The program code is original because it is unlikely that two programmers solving the same extensive problem would write identical programs. Just as it is unlikely that two painters commissioned to paint pictures on the same subject will paint them identically.

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What does not affect the recognition of a work as a work in the sense of copyright?

Whether a given work is considered a work is not affected by circumstances such as:

  • the value of the work (its artistic or scientific level, its usefulness is not important, the protection also covers works considered kitschy, with content or manner of dissemination contrary to the law, e.g. the subject of copyright protection are pornographic or forbidden works),

  • the creator's person (age, education, practical preparation in a given field of creativity, sanity, author's conviction about the creative nature of the work result does not matter),

  • the way of expressing the work, i.e. whether it will be in writing or presented using any graphic technique, handwritten or mechanical, or will it be recorded as an audio or video work,

  • the intention to create a work (it does not matter whether the author had control over the process of creating the work - works created by accident also benefit from protection),

  • the amount of effort and workload that was incurred to create the work,

  • the size of the work (the work will be both a sketch and a huge painting),

  • completion of the piece (plans, projects, fragments, unfinished parts are also protected).

Categories of works excluded from copyright protection

Some categories of products of the intellect are excluded from copyright, as stated in Art. 4 of the Act:


Art. 4. They are not subject to copyright:

1) normative acts or their official drafts;

2) official documents, materials, signs and symbols;

3) published patent or protection descriptions;

4) simple press releases.


The intellectual products listed in points 1-3, even if they meet the features of a work, are excluded from protection (this exclusion does not apply in the case of, for example, "unofficial" translations of normative acts and other materials mentioned above).On the other hand, "simple press releases" are not protected if they do not meet the criteria of a work, as defined in Art. 1 of the copyright law (i.e. when information about facts is expressed in a standard, banal and simple manner).

Copyright - inspiration, elaboration, plagiarism

Inspiration is nothing but an influence on someone, a suggestion. Under the copyright law, a work is inspired by a separate work, created as a result of a wake-up call from another work. This wake-up call is the link between an inspired and an inspirational work. It is she who starts the creative process in another person after getting acquainted with the original. Although we know that James Joyce was inspired by Homer's The Odyssey when he wrote Ulysses, we will never say that he plagiarized the work of a Greek poet.

The study was regulated by the act. Pursuant to Art. 2, the development of someone else's work, in particular translation, modification, adaptation, is subject to copyright without prejudice to the right to the original work. Thus, it is a dependent work (as opposed to an inspired work), but it is subject to copyright protection. Disposal and use of the study depends on obtaining the consent of the author of the original work, unless the copyrights to the original work have expired (please note that the author has the right to withdraw consent if the study has not been disseminated within 5 years of its publication). The study draws from another work both the content and sometimes the form. The catalog presented in the act is not exhaustive - abstracts, drama staging and musical arrangements are also considered as elaboration. It is also very important that the copies of the study should mention the creator and the title of the original work.

Plagiarized works, on the other hand, are those that are not independent, because they take over creative elements from other works. If the work is used in a way that exceeds the permitted scope (right to quote), it will be a copyright infringement, i.e. plagiarism (because it is done without the author's permission). How can you tell where inspiration ends and plagiarism begins? You have to bear in mind that plagiarism is not just about literally copying someone else's work. It will also be a plagiarism to sign a work of another person with your name, in which minor modifications have been made (e.g. stylistic, changes to individual words, etc.). On the other hand, making further-reaching changes may lead to the modification of the work, and thus its illegal use. The lack of creative activity is a plagiarism. Making more serious changes to a song will not always be a creative activity, it may turn out that a plagiarist will simply lead to the development of an original song. Of course, this does not mean that you cannot use existing works in your own work.

Example 6.

You can, for example, write on topics previously discussed by other people, but you should formulate the text yourself (you cannot use specific words, sentences, phrases, examples exactly as the author of the original work did).

Related rights and copyrights

The full name of the Copyright Act is "the Act on Copyright and Related Rights". What are these related rights? These are rights in addition to copyright, but related not to the creator of the work itself, but rather to the entities through which the work is disseminated.

Related rights are:

  • the right to artistic performance - a performance characterized by its own, creative interpretation of the original work will be protected,

  • rights to phonograms and videograms - a phonogram is the first recording of the sound layer of a work performance, and a videogram is the first fixation of a sequence of moving images, regardless of whether it is already an audiovisual work (an audiovisual work will always be a videogram, but a videogram will not always be an audiovisual work - a videogram is e.g. recording of training conducted for employees),

  • the right to broadcast - vested in a radio or television organization and applies to programs they have created,

  • the rights to first editions as well as scientific and critical editions - in the first case, it is the first public release of a work that is no longer protected by copyright, whose copies have never been made available during the author's lifetime - the publisher is entitled to protection; in the second case, it refers to critical or scientific editions used to develop a text that is no longer protected by copyright (e.g. scientific editions of old manuscripts).