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Realization of a nullum crimen sine lege certa principle in light of Article 115 Paragraph 3 of a Polish Copyright Act

copyright law intellectual property protection by penal law nullum crimen sine lege certa constitutionality of criminal law regulations

The aim of the article is to analyze the content of Article 115 Paragraph 3 of the Polish Copyright Act and to examine the constitutionality of the provision based on the nullum crimen sine lege certa principle expressed in Article 42 of the Constitution. The basis for the allegation of the unconstitutionality of the provision is the Article’s use of the phrase: “Who […] otherwise violates”, which is, in the opinion of the doctrine, imprecise and contrary to the principle of legal certainty in matters of criminal law. Basing on the quoted regulations and the practice the author tries to answer a question whether the content of Article 115 Paragraph 3 of the Polish Copyright Act is constitutional and subjects the issue of using such clauses to the polemics. The article presents arguments for the rightness of such regulation as well as opposing views and the final conclusion based on the judgment of February 17, 2015, in which the Constitutional Tribunal adjudicated on the conformity of the regulation with the Constitution. Despite the approving position of the Constitutional Tribunal the issue of the constitutionality of the provision is still controversial and causes problems in the classification of acts as prohibited under the Copyright Act. Nevertheless, the use of complementary clauses in particular containing the phrase: “Who […] otherwise violates” seems to be unavoidable due to the dynamic development of technology and law. The principle of legal certainty can be implemented using a pro-constitutional interpretation in order to maximize the alignment of legal norms with the objectives and values expressed in the Constitution. This paper will also examine the secondary issue of criminal law protection of intellectual property rights with an emphasis on copyright law.

Wydawnictwo Uniwersytetu Wrocławskiego

ISSN 1733-5779 ISSN 0239-6661

10.19195/1733-5779.25.8

Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne, ISSN 1733-5779. Nr 25 (2018), s. 125-139

Czasopisma Naukowe w Sieci (CNS)

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