Moral and economic copyrights – the distinction

A painted picture, a composed song, or a written book are protected as works of art not by one, but by two different sets of rights.

The first category of these rights protects the author, and even – as the Polish Supreme Court rightly notes in its judgement of 21 March 2014 (file ref. IV CSK 407/13) – their bond with the work, “understood as the author’s relationship with the work resulting from their psychological, emotional, and intellectual connection with the work. Such close connection of these rights and the creator means that they cannot be transferred or waived and that are not subject to time limits[1]” or inheritance; they are perpetual.

The second category of rights constitutes a kind of temporary exclusive licence, protecting the creator’s ability to monetize their work (within the limits specified in the law), the right to remuneration for the use of the work, and the right to dispose of the work in all fields of exploitation, including rebroadcasting. Therefore, they are monopolistic in nature, can also be transferred to other entities, and, pursuant to Article 922 § 1 of the Civil Code, are subject to inheritance.

70 years of silence – protection period of economic copyrights

The period of protection of economic copyrights differs in various countries. As I. Bałos points out, “in Mexico, it is the author’s life of plus 100 years; in Yemen, plus 30 years; in Eritrea, the author’s heirs have exclusive rights to certain fields of exploitation for 50 years from the publication of the work; in the Marshall Islands, there is no legislation whatsoever regarding the protection of economic copyrights[2]”. In Poland, this period has been systematically extended. Initially, it was fifty years. In 2000, due to the increase in average life expectancy, it was raised to seventy years.

In practice, however, the protection period regarding economic copyrights can be even longer. Why? Because in Article 36 of the Copyright and Related Rights Law, the legislator provides for various exceptions, for example, difficulty in determining the moment of death or identifying the actual author, or when several people worked on the work. All of these influence the determination of the expiry of copyright protection, and therefore the length of the period during which the work remains in the hands of its rightful holders. Therefore, economic copyrights do not expire upon the creator’s death, but rather become part of the estate, forming part of the inheritance, and can be acquired by both statutory and testamentary heirs.

However, if the creator has not disposed of their rights, they are inherited according to the individual heirs’ shares in the estate. The heirs retain full economic rights for a period of seventy years after the creator’s death – they can derive financial benefits from the work and decide on its further use, including granting consent for adaptation or exploitation in other fields.

It would be difficult, however, to imagine a reader having to obtain the heirs’ consent before reading a book, a listener before playing music at home, or a student before citing the work in their research. Therefore, the legislator provided a mechanism to balance the interests of creators and users, an exception to creator’s monopoly, that is, the permitted private use. Thanks to this institution, a single disc is enough to resonate throughout the entire home, eliminating the need to purchase a separate copy for each household member and isolate themselves in separate rooms. However, it is the public domain that grants full rights and freedom in using a work.

The public domain – when culture ceases to be private property

It might seem that after the lapse of the seventy-year period counted from the creator’s death, the last dissemination, or publication of the work, the work immediately enters the public domain, and from that moment on, anyone can use it freely and without restrictions. Nothing could be further from the truth. Even freedom has its own calendar – a work becomes available only at the beginning of the new year. 1 January of the year following the expiry of protection is the symbolic gateway through which a work passes from private heritage to the common cultural heritage. For example, this year, the works of artists who died in 1954 have entered the public domain. These include works such as the prose cycle “Medallions” by the eminent Polish writer Zofia Nałkowska, and the famous folk mystery play “Pastorałka” [Pastorale] composed by Leon Schiller.

Interestingly, none of the alterations, transformations, or other adaptations enter the public domain along with the “original” work. The well-known “Mona Lisa” by Leonardo da Vinci has long been in the public domain, but Salvador Dali’s famous alteration – a caricature of the Mona Lisa with the artist’s signature mustache and glued-on hands – will only enter the public domain in a few decades. However, if the original “Mona Lisa” was still protected by economic copyright, Salvador Dali’s creative invention would not fall within the scope of permitted use and would most likely be considered an infringement.

The creator remains silent; the work speaks on

Although the creator passes away, their works remain immortal. Their heirs will inherit economic copyrights to the works for seventy years; after that, the works will enter the public domain, where they can freely inspire, surprise, and gain new life in the hands of subsequent generations of artists.

1 Judgement of the Supreme Court – Civil Chamber, IV CSK 407/13, 21 March 2014, Legalis.

2 I. Bałos [in:] A. Michalak (ed.), Copyright and Related Rights Act. Commentary, 1^st ed., 2019, Article 36