Studia Prawnicze. Rozprawy i Materiały / Studies in Law: Research Papers

This scientific article deals with the key issues related to the position of intellectual property rights in the insolvency estate. It first addresses issues relating to the inventory of intellectual property rights by the trustee. Next, the author of the article presents the impact of declaration of insolvency on license agreements. That last issue is analyzed from a two-sided point of view. First, the author considers the problem of the trustee's freedom to terminate a license agreement. Secondly, the article deals with the impact of the sale of the insolvent's enterprise on the existing license agreements (it is a question of determining whether the license agreement will remain in force in respect of the buyer of the enterprise or will expire). The whole issue is presented with reference to solutions adopted in foreign legal systems. Also foreign legal literature is used in the article. Finally, the author deals with the impact of declaring insolvency on the agreements that the insolvent has concluded with organizations for the collective management of copyright and related rights. In addition to the analysis of the current state of the law in Poland, the author included in the article a number of de lege ferenda postulates.

The subject of this study is the assessment of the possibility for the purchasers of dependent works (developments) made on the basis of works whose economic copyrights have been acquired as a result of bankruptcy proceedings to use these rights. The resolution of this issue required an answer to the question of whether, and upon fulfilment of which requirements, a trustee as a result of bankruptcy proceedings may transfer to a third party the right to authorise the exercise of derivative copyrights. In addition, it was also necessary to determine what effect personal copyrights, above all the right to the integrity of the work, had on the use of the works by the purchaser of the right to authorise the exercise of subsidiary copyrights. The analysis carried out provided conclusions of both theoretical and practical importance.

The article analyzes the breeder’s exclusive right to plant varieties within the context of bankruptcy proceedings, presenting this form of protection as a key component of the bankruptcy estate. This sui generis industrial right allows breeders to derive financial benefits from registered plant varieties while serving a significant regulatory role in the agricultural market.
The authors describe possible methods for liquidating this right in bankruptcy proceedings, including both its sale as a separate asset and as part of an enterprise or an organized part of it. The article identifies challenges faced by receivers, particularly regarding their legitimacy to apply for registration of rights to varieties bred or discovered by the breeder and issues related to the collection of agricultural exemption fees.
Furthermore, the article includes a comparative analysis of relevant solutions in the United States and India regarding the liquidation of breeder’s rights in bankruptcy contexts, suggesting that some of these solutions could be adapted to Polish legislation.

The discussed issue concerns intellectual property rights in bankruptcy proceedings, in particular matters related to defects in design documentation as a work, in the face of the bankruptcy of an entrepreneur who is a party to the contract for the development of design documentation in the investment process.
The contract for the preparation and delivery of design documentation is burdened with the risk of defects in design documentation, which may be revealed at various stages of the investment process. The specificity of design documentation as a work is that it consists of a number of so-called industry documents, developed by individual persons, while the design office most often has the copyright property rights to this documentation, which it transfers to the investor.
It also becomes problematic to pursue claims for the performance of specific activities within the scope of design documentation in the event of the declaration of bankruptcy of the design office, because most often the investor does not have a direct contract with the authors of individual industry studies.
In the face of the designer’s bankruptcy, it may become problematic for the investor to enforce the obligation to bring the design documentation into compliance with the law, as well as for the investor to change the designer later in the investment process and for the new designer to interfere with the design documentation due to the bankruptcy of the original designer (design office). The legal possibilities for removing defects in the design documentation are provided by the institution of author’s supervision, both under construction law and under copyright law, introducing certain rights and obligations on the part of designers.

The article is devoted to enforcement aspects of securing non-pecuniary claims and ancillary measures in intellectual property cases. The author seeks to overcome difficulties that arise in this context through a critical analysis of the applicable regulations.
The author considers the solution to practical problems, which are posed by the accumulation in one application of security of claims which, due to the demanded security method, are subject to ex parte and adversarial proceedings, as well as the accumulation in one application of security of claims which, due to the demanded security method, are subject to enforcement by various enforcement bodies, by issuing a partial decision concerning the methods of securing claims subject to ex parte proceedings, and then in the adversarial formula of the final order with regard to the other forms of security and the sending of a full copy of the order to the claimant and of an extract from the order containing the decision granting the application, depending on the manner of security, either to the claimant if it is to be served by the enforcement authority, or to the debtor if it is to be served directly by the court.
Furthermore, the author indicates that it is sufficient to specify the constitutive features of the thing or action in the rulings while leaving the concretisation of these things and actions to the enforcement authority conducting the enforcement proceedings. In connection with the above, he postulates the transfer of enforcement cases concerning the security of non-monetary claims in intellectual property cases and the application of ancillary measures to the jurisdiction of specialised intellectual property courts (district courts) as both enforcement bodies and enforcement courts, while leaving enforcement cases concerning the security of monetary benefits in intellectual property cases to the jurisdiction of district courts as both enforcement bodies and enforcement courts. 

The subject of this article is to discuss the issue of know-how in the context of satisfying creditors. This article begins with a discussion of the concept of know-how in Polish law. Despite the occurrence of this concept in various legal acts, it does not have a single legal definition. The perspective adopted in this article, i.e. assigning know-how a certain economic value, speaks in favour of using a broad definition, encompassing its various forms. The rest of the study discusses various forms of ‘commercialization’ of know-how, depending on its form and value. The article ends with a summary, also containing de lege ferenda postulates.

This article is a semantic analysis of a concept relatively often used by criminal law scholars – responsibility in the pre-front of the act. It is not a statutory concept, but it is overly often expressed in legal literature and – in practice – in various types of pleadings. The author notes that the term is used in two senses. This is because it is associated both with the stage forms of the offence and with the issue of the exclusion of criminal responsibility due to the lack of sanity of the perpetrator. He analyses the reasons for this distinction and the appropriateness of assigning the title term to each of them.

This paper argues that there should be a reassessment of the scope of the territorial tort exception to State immunity from jurisdiction. Due to the advance of technology, it is not uncommon that torts committed on the territory of a State, causing damages to properties, injuries to persons or deaths, have been originated, executed, or directed by a person situated on the territory of another State. This is usually the case with cyberattacks or attacks performed by drones, which have a transnational nature. When those torts are attributed to a foreign State, being committed by foreign State agents or private persons sponsored by a foreign State, the issue of State immunity arises in proceedings seeking redress before the courts of the State of the forum. This article claims the issue may be resolved by reinterpreting the territorial connection element of the territorial tort exception in light of the impact of new technologies to the law of State immunity.

This study is devoted to the issue of the crime of embezzlement in a situation where a leased item is lost. The analysis of the provision on criminal liability cannot disregard the essence of the civil leasing contract. This applies to a situation in which the value of the purchase of the leased item is settled under a contract with one user. Well, in the event of loss of the leased item for reasons other than those attributable to the financing party, the leasing contract expires and the user is obliged to pay all remaining leasing installments. The loss of the leased item then prevents the financing party from settling the benefits that he could have achieved by selling the leased item and leasing it to a new lease. In some situations, the insurance company may refuse to pay compensation, and therefore it will not be included in the beneficiary’s liability. If, as a consequence of the loss of the leased item, the user fulfills his obligation and pays the financing party the equivalent of all installments remaining until the end of the contract, despite the loss of the leased object, the economic interest of the financing party is not affected. It should be noted that the user has the prospect of acquiring ownership of the leased item, and the financing party is never interested in the physical possession of the item, but in receiving the equivalent for this item and earnings in connection with financing its purchase. According to the presented view, there is no criminal liability for embezzlement.