Abstract

The discussion on the issue of indirect infringement of copyrights is largely directed by European Union law and focuses on the liability of digital service providers for an act of making a work publicly available. Upon implementation of Directive 2019/719 into the Polish legal system new copyright regulations have been introduced. Earlier, the Supreme Court passed a judgment in a much publicized case regarding infringement of copyrights by the “chomikuj. pl” service. The positions of the courts hearing this case in subsequent instances reveal the weakness of Polish case law in building the dogmatic concept of liability for indirect infringement of intellectual property rights.
Direct and indirect copyright infringements are usually distinguished basied on a distinction between causation and other non-causative forms of infringement. I find such allocation of individual forms of copyright infringement misleading.
In practice, distinguishing complicity from aiding and abetting may encounter difficulties. The decisive factor in this field is, firstly, whether it is possible to talk about aiding and abetting by omission and, secondly, whether unintentional aiding and abetting is possible.
When considering the case of “chomikuj.pl” the Supreme Court assumed that the defendant’s behaviour could be classified not only as aiding and abetting infringement of the plaintiffs’ copyrights, but also as direct complicity. At the same time, it assumed that unintentional aiding and abetting committed as a result of omission was possible. Upon certain assumptions, the court’s position can be considered correct. In relation to torts committed unintentionally, the categories: causation, complicity, and aiding and abetting do not apply. Any person who causes an unlawful effect by a breach of the duty of due care shall be liable for the commission of a tort. Consequently, if a (co-)infringer who has breached a duty of due care relating to the prevention of an infringement is liable for a failure to exercise due diligence, the distinction between “perpetrator” and “aide” becomes irrelevant. The degree of care required depends, on one hand, on the gravity of the infringement and the likelihood of its commitment, and, on the other, on the costs of protective measures that should have been taken. On such a dogmatic basis, it is relatively easy to justify that digital service providers are not obliged to check all user content, but should respond when they become aware of infringements.