16 December 2017

The work is a key concept of the act on copyright and related rights.

The legislator defines a work as any manifestation of creative activity of an individual character, determined in any form, regardless of the value, purpose and manner of expression.
According to the examples provided by the legislator, works are those works that are expressed in particular by word, mathematical symbols, graphic signs (literary, journalistic, scientific, cartographic and computer programs), as well as works of art, photography, luting, industrial and architectural design, architectural-urban and urban, musical and verbal-musical, stage, stage-music, choreographic and pantomime, audiovisual (including film).

Although it is necessary to prove that we have a work, protection is granted regardless of any formalities.
However, it should be remembered that in doctrine and case law it is pointed out that the burden of demonstrating significant characteristics of a work rests with the entity seeking protection. It means, therefore, that the protection seeking on the basis of copyright should demonstrate the very existence of the work and its creative values (judgment of the SA in Warsaw of 25 June 2012, I ACa 1083/11).

Probably for this reason, some say that it makes no sense to claim. Even if we are the authors of photos and descriptions, it may be a problem to show that they constitute a work within the meaning of copyright law. However, it is not worth giving up, below I present explanations that will certainly allow us to better assess whether we are dealing with a work.

Product photo as a work

The Supreme Court in Poland in one of the judgments characterized the work as a creative, subjectively new, original product of the intellect, caused by the creator’s unique personality, which – made by someone else – would look different (judgment of the Supreme Court of 5 July 2002, III CKN 1096/00).

The Supreme Court also examined the features of photography that are necessary to give it the characteristics of a work, and thus the protection resulting from the discussed act. It is assumed that in the field of artistic photography one can assume conscious choice of the moment of photography, point of view, image composition (framing), lighting, determining depth, focus and perspective, applying special effects and treatments aimed at giving a specific character to photography. These elements give photography an individual imprint necessary to recognize the existence of a work within the meaning of the Copyright Law.

The above explains will help you assess whether or not we are dealing with the work. However, it should be remembered that the evaluation of a given photo or description in terms of recognition of it as a work is quite subjective. Therefore, even if some elements in our case do not apply, it is still possible to recognize in this case that we are dealing with the work.