Przegląd Ustawodawstwa Gospodarczego nr 02/2012

SPIS TREŚCI
 
PUG 2/2012
 
Dr Marlena Jankowska, Uniwersytet Śląski
Dr Mirosław Pawełczyk, Uniwersytet Śląski

Korzystanie z zasobów witryny internetowej Geoportalu a dozwolony użytek w prawie autorskim
 

Summary:
 

Using the Geoportal web site resources and permitted use in copyright  law
Geoportal constitutes a website containing geospacial data depicting spacial objects, whereas the latter ones are to be understood as abstraction of geographic object as apparition of real world, being geometric figures created by educed set of points in two-dimentional and three-dimentional feature. 
The use of geoportals is the subject of regulation of Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) which has been implemented in Poland by enacting the Act of Infrastructure for Spacial Information on 4 March 2010. 

In many countries, among others in Poland, Spacial Data Infrastructures (SDI) are being developed, which shall evolve to creating Global Spacial Data Infrastructure (GSDI) in the future. According to Article 17 Section 3 of INSPIRE Directive the costs and charges concerning SDI shall be kept to the minimum required to ensure the necessary quality and supply of spacial data sets and services together with a reasonable return on investments. This sentence may be read as the indirect reccomendation of using open source licences, which allowes the broad scope of using geoportal.
In Poland the website of Geoportal is made available on terms of proprietary licence, which gives rise to many interpretation difficulties concerning the use. According to the Chapter 3 point 3 of the licence „the service users shall use the Geoportal data for non-profit and non-commercial use only, in terms of free use specified by the provisions of Polish Copyright Act”. It is to be considered if Geoportal is the subject of regulation of copyright law. The study of the matter leads to the conclusion that Geoportal is an uncreative database that is the subject of regulation of Protection of Databases Act. This is important to note that the act establishes the scope of free use of Geoportal, that is wider than on the basis of Copyright Act. On the basis of art. 8 u.o.b.d. it is pemitted to use Geoportal for didactical and scholar use and for purposes of internal security, court and administration proceeding purposes. The scope of use is not changed under the regulation of Access to Public Information Act.
The analysis of scope of free use is relevant when the database is creative as well as when it is not. The purpose of the analysis is to make emphasis that the Copyright Act as well as the Protection of Databases Act do not establish permission to use Geoportal in such a wide scope as it is demanded by the purposes of creating such a database. 
 
Mgr Katarzyna Nędzi, Uniwersytet Warszawski

Problemy związane z refundacją leków
 

Summary:
 

Points at Issue of Drug Reimbursement.
The new Drug Reimbursement Act involves a major overhaul of Poland’s reimbursement system. The new regulations apply a number of instruments in order to reduce the increasing expenditure on healthcare and to ensure the availability of adequate supplies of medicinal products at prices equal for all the patients.
The key elements of the reform are the introduction of fixed prices, fixed wholesale and retail margins for reimbursed products, and a statutory cap on the National Health Fund’s reimbursement spending, set at 17% of its budget, with accompanying payback mechanisms. These measures will directly and drastically influence the economics of pharmaceutical companies, wholesalers and pharmacies, and will severely restrict the freedom of economic activity in the  market of the reimbursed drugs. For this reason, the regulations have provoked strong controversy and raised concerns about their constitutionality.
The paper presents the issues regarding the compliance of the new drug reimbursement regulations with the Polish Constitution. It also discusses the objectives of the Drug Reimbursement Act and its impact on patients and entrepreneurs.
 

Dr Małgorzata Sieradzka, Uczelnia Łazarskiego w Warszawie
Dochodzenie roszczeń odszkodowawczych z tytułu naruszenia unijnego i krajowego prawa konkurencji  (cz.II)
 
Summary:
 
Pursuing claims on the grounds of infringement of the EU and national competition law (part II)
The mechanisms available to pursue claims on the grounds of infringement of competition law do not ensure full effectiveness  of art. 101 and art. 102 TFEU with regard to the injured parties. Each party injured should have an opportunity to sue and obtain compensation for  damages under the infringement of EU and national competition rules. Legal actions for damages, arising from implementation of competition law, brought under civil-law/private law proceedings, complement the enforcement of regulations through public law procedures. The injured undertakings should be given an opportunity to pursue claims for redressing damages suffered from infringement of competition rules. The law indicated to seek the rights guaranteed by the EU or national competition law does not mean that their enforcement is easy and simple. The injured undertaking pursuing claims for damages on the grounds of infringement of competition rules encounter numerous obstacles which prevent or hinder compensation to be obtained. From the point of view of the effectiveness of the aforementioned claims, elimination of such obstacles is of significant importance. As everybody knows, obstacles discourage the injured to make claims and this in turn negatively effects an interest in the model of private enforcement of competition law.
 
KONSULTACJE
 
Mgr Łukasz Gołąb, Uniwersytet Kardynała Stefana Wyszyńskiego 

Umowa jako instrument realizacji prawa dostępu do infrastruktury kolejowej

Summary:

Agreement as  an instrument for enforcment of  the right to get access to railway infrastructure 
Agreement, in the legal meaning of the word, constitutes the basic instrument for establishment of obligatory relations between the parties on the market. It is beyond any doubt, that the concerned agreement relating to the access to railway infrastructure is characterized by many specific features, which result from administrative intervention in the process of its conclusion as well as its content.
The main aim of this article is to make an effort in legal analysis of the agreement relating to access to railway infrastructure as an example of – basically – private law relation, of which the content and enforcement procedure are strongly affected by public law provisions, restricting all traditionally mentioned “freedoms” creating the freedom of contracts. The mentioned intervention of public law in the contractual freedom reflects the aspiration of the European Union and – accordingly – domestic legislators to ensure in the railway sector – within the scope of its liberalization – the development of effective competition, which depends on effective mechanisms of access to railway infrastructure, breaking the previous monopoly paradigm.