The latest issue of Jagiellonian University’s Scientific Notebooks (ZNUJ) features an article by Dr. Michał Markiewicz entitled “Legal qualification of a work in civil proceedings.”
Quoting the author: “In this paper, I focus on assessing whether the qualification of the ‘individual character of the work’ criterion is a factual circumstance or a legal circumstance of the dispute. The consequences of adopting one or the other approach are far-reaching. For example, recognizing that this is a factual circumstance of the dispute prevents a cassation appeal from being based on an incorrect qualification of the work, while recognizing that it is a legal circumstance excludes the plaintiff from the obligation to demonstrate this qualification (lack of burden of proof), placing the burden on the court in this regard.
In my opinion, qualifying the individual character requirement constitutes the application of law (subsumption) and is a legal circumstance of the dispute. Consequently, it should be concluded that:
1. The plaintiff is not required to demonstrate that the work meets the individual character requirement;
2. The plaintiff is solely required to demonstrate the factual circumstances that allow for an assessment of the individual character of the work – in practice, providing the original or a copy of the work (or requesting an inspection) should be sufficient;
3. There is only a pragmatic purpose (but no obligation) to present the court with indirect factual circumstances, the purpose of which is to guide the court towards those features of the work that, by subsumption, it should take into account when applying the law (a purpose stemming from the argumentative aspect of a civil dispute);
4. In the case of demonstrating copyright infringement by another entity, the plaintiff is required to indicate the elements of the work taken over by the other entity (a factual circumstance), while the court is also responsible for determining whether these fragments meet the individual character requirement (as a legal circumstance);
5. There is no need to raise an allegation of a violation of substantive law in an appeal – the court of second instance is obligated to examine this circumstance ex officio;
6. The possibility of filing a cassation appeal due to an erroneous classification of the work’s individual character requirement or its failure to meet it.”