Abstract

The problem of legal qualification of contracts for performance of a concert is not new, though differently resolved. The article analyses the views of the doctrine and case-law regarding legal qualification of intangible unembodied works against the background of the Supreme Court judgment of 13 January 2017, III UK 53/16. It is an attempt to answer the question of how to qualify such contracts within the scheme: a task-specific contract - a service contract to which the provisions concerning a mandate contract are applied accordingly. The author analyzes the substantive elements of both types of contracts, in particular the result and duty of care, definiteness and self-containment of the object of contract. He refers to the requirements of the creative nature of a work and its identification with a thing within the meaning of Art. 45 of the Civil Code. The author is looking for a relationship of Art. 627 of the Civil Code to the copyright law. He concludes with a warning against absolute qualification of nominate contracts owing to the danger of violating civil law principles, and in particular the principle of the freedom of contract. He proposes an in concreto assessment, but is inclined to consider such agreements as mixed contracts closer to service contracts. The author formulates a de lege ferenda postulate to regulate a new type of contract which takes into account the features of contracts for intangible works and legal problems of their performance.