Przegląd Ustawodawstwa Gospodarczego nr 2/2013
Rok wydania: 2013
Miejsce wydania: Warszawa
PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 2/2013
Rafał Adamus, Uniwersytet Opolski
Upadłość członków zgrupowania przedsiębiorców. Uwagi de lege ferenda
Bankruptcy of the members of enterprise groups. Suggestions de lege ferenda
The paper generally deals with the problem of bankruptcy of the members of enterprise groups. The UNCITRAL issued “UNCITRAL Legislative Guide on Insolvency Law. Part three: Treatment of enterprise groups in insolvency” (New York 2012). The purpose of the above mentioned document is to allow, in the domestic and international dimension, treatment of the insolvency proceedings of at least one or more enterprise group members “within the context of the enterprise group to address the issues particular to insolvency proceedings involving those groups and to achieve result for the enterprise group as a whole and its creditors.” In the paper there is a short analysis of the UNCITRAL’s recommendations for the legislators in the context of the present Polish Bankruptcy and Reorganization Law. There are also suggestions de lege ferenda based on the achievements of the UNCITRAL.
Aleksander Werner, Szkoła Główna Handlowa
Zwolnienie w podatku VAT usług świadczonych przez niezależne grupy osób
Exemption in VAT in the transactions of the supply of services by independent groups of persons
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax introduced Exemption of the transactions of the supply of services by independent groups of persons, who are carrying on an activity which is exempt from VAT or in relation to which they are not taxable persons, for the purpose of rendering their members. The provision has been directly implemented from 1st January 2011 to the Polish act on value added tax. In the article were presented general conditions concerning the exemption, thesis of doctrine and finally main Polish and European court’s decision.
Katarzyna Plata-Gardas, Uniwersytet Śląski
Leniency i leniency plus w świetle propozycji zmian do ustawy o ochronie konkurencji i konsumentów
Leniency and Leniency Plus Programmes in View of the Proposed Amendments to the Competition and Consumer Protection Act
The aim of this article is to discuss and evaluate some of the proposed amendments included in the amending bill to the Law on competition and consumer protection concerning two, in the author’s opinion very interesting programmes: leniency and leniency plus, which are to enable an effective fight against cartels. In this paper the author explains the meaning of these notions.
Despite the fact that the leniency programme has been operating in the Polish legal system for some time now, it has not become very popular. The objective of the amending bill is therefore to introduce certain necessary changes (concerning e.g. a new method for calculating the reduction of fines), which would make the programme more attractive to entrepreneurs.
The amending bill also seeks to introduce leniency plus, a programme yet unknown in the Polish legal system but already operating in some states. Although its application arouses some controversies, it has had a positive impact on the fight against unlawful agreements, which has resulted in an overall improvement of conditions for all market participants - both the entrepreneurs and consumers. This article aims to illustrate that introduction of relevant modifications or even entirely new solutions may, in a number of cases prove to be a desirable measure. In the author’s opinion should the proposed amendments be adopted, they will lead to an increase in the detection rate of the unlawful agreements which operate in Poland as well as make the leniency programme more attractive, which in turn will contribute to the proper functioning of the Polish economy.
Prawo własności intelektualnej
Aleksandra Sewerynik, Uniwersytet Muzyczny im. Fryderyka Chopina w Warszawie
Ochrona elementów składowych utworu muzycznego
The copyright protection of the components of musical works
This article relates to the copyright protection of the components of musical works. The separation of the copyright protected components of a musical work from those that are unprotected is essential in order to preserve musical creativity. It is the starting point for any legal analysis of the issues of plagiarism, inspiration, derivative works and the including fragments of music in works.
In the first part of the article the author discusses the protection of the components of musical works, as governed by Articles 1, 9.2, 17 and 29 of the Polish Copyright Act. These provisions set out the grounds under which there can be the protection of any specific distinguishable and autonomous component of a musical work, established in any form, which arise as a manifestation of creative activity of individual nature of a human being. Thereafter, the author analyses the statutory exemptions from copyright protection, including the issue of “folk art work”. The authorhighlights the distinction between unprotected works of folk art and those individual works that have been written in the “folk style” but which are, nevertheless, copyright protected. There is a further analysis of the general issues that may affect the copyright protection of any component of a musical work, arising out if such things as different composition techniques, the duration of the work and the specific language of the musical work and its intellectual context.
In undertaking this detailed analysis of the components of the copyright protection of musical works the author considers issues such as melody, rhythm, harmony, colour, formal texture, agogics, articulation, dynamics and phrasing. The author explores the limits of "musical thoughts" (referred to as apportionment of tensions in a musical work) which are the boundaries of protected sections of the melody. The author also underlines the lack of protection for certain segments of a musical work, which are based on the closed structures (scales, broken chords, basic chords components) that are based on commonly used harmonic patterns.
The chord pattern of a musical work is a concept, and is therefore a component of a musical work which is unprotected by copyright. Copyright protection may be granted only to a specific and original form of expression of the pattern. This article also reflects upon the creative and /or technical modifications which can be made to the copyright protected components of a musical work, such as instrumentation issues, the arrangement of the musical work and any changes in melody.
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