Was there champagne?
Admittedly not with champagne, but we celebrated the fact that, after 5 agonising years of proving our case, the court found that copyright theft had been committed against NAC Amber. In 2013, at Amberif, quite by accident, a client showed me a copied design of my butterfly that she had purchased from another company. I tried to resolve the matter amicably: all I cared about was that the dishonest company withdrew our designs from sale and made a commitment in the deed that it would never do so again. At the first confrontation, the company representative made no secret of the fact that she had my designs on offer, later explaining that she had copied them unknowingly and had no knowledge that they belonged to anyone - she was supposed to have accepted an order from a Chinese client to make copies of the finished products she had left behind, which had been made at NAC Amber. In the end, however, she informed me, not without satisfaction in her voice, that I had no grounds to assert my rights as the designs had not been previously registered with the Patent Office.
Copyright protects the creator regardless of whether his or her designs are patented or not.
In Poland, there is a very low level of knowledge about copyright and its protection, also - or perhaps especially - in the amber industry. Producers think that if a design has not been registered, it means that it is a public good and anyone can use it freely. I became convinced of this at one of the hearings, when the defendant defended herself, claiming that in the amber industry copying is normal, everyone copies here, and that what is available on the Internet can be used freely. She also explained how the designs are made: you take the catalogues of Italian manufacturers, choose a design and replace the stones used in it with amber. Simple? (laughs) To our copied butterfly, the feelers and abdomen were added, which, according to the defendant, made it a completely different design. And if we add a spoiler to an Opel, is it still an Opel or is it a completely different car?
The matter seemed quite simple: the designs were copied 1:1.
And yet it wasn't. I embarked on the legal path back in 2013, notifying the prosecutor's office of a possible copyright infringement offence. Unfortunately, the prosecutor's office decided that it did not see the elements of a crime. This came as a shock. I decided that I would not leave the case like that, and filed a complaint - the court recognised it and found a high probability of infringement, without prejudging guilt, and referred the case back to the prosecutor's office. The latter upheld its opinion. But I did not let go: I had already lost two years. That is why I decided to file a criminal case, because I invariably believe that copyright theft is a crime. The court of first instance agreed with me. It held that not having a design registered does not at all mean that you can copy it: after all, someone invented it and has the rights to it. In the court's view, copying for financial gain, even under the pretext of ignorance, is a violation of the law. What was surprising - this time, finally, in a positive sense - was that the court apologised to me for having waited so long for justice, and that I had to defend my case on my own, unsupported by the prosecution, as a subsidiary accuser. The judge presiding over the case emphasised that the entire court process, the set of documents provided and the numerous witnesses did not leave even a shadow of a doubt that copyright had been infringed. The court also reported that it had considered restricting the defendant's right to practise her profession, but, given her age and the production of jewellery as her only source of income, had not done so. The verdict was not final - and here is another surprise - it was appealed by the prosecution, which found the defendant not guilty. It is difficult to even comment on this... The case returned to the court of public opinion: the court of second instance assessing the work of the court of first instance and, after two hearings, delivered a verdict that completely overlapped with that of the first instance.
Have you applied for a restriction of practising rights for the accused?
No. There was no such demand on my part. What I wanted above all was a settlement on the terms already mentioned - there was plenty of willingness and time to get along, but the other side was not interested. Even the court made attempts at mediation - also without success. All I asked for was for it to stop, for my rights to be recognised and for a charitable contribution to be made. I deliberately did not start a civil case because I do not know how many designs were copied, how long it took, so I was not able to estimate the losses.
The accusation of copyright theft is like a scarlet letter in an industry based on design.
After a criminal case and a conviction, the defendant is given the status of a final conviction, which means that he or she is on the register of convicted persons. But there is something much worse in this conviction: the court has in its hands a powerful tool to combat rogue producers, namely the possibility of restricting their right to practise their profession. This is much more severe than a financial penalty.
This is one of the few copyright theft cases won. It will probably put the industry's knowledge on the subject firmly in order.
This case is interesting in that the designs were not proprietary. Thanks to what I have gone through, everyone will know that neither this is a prerequisite for asserting one's rights, nor a mitigating circumstance for copyists. The court-appointed copyright expert explained in the opinion presented that even if only the colours in the design had been changed, it would not have made any difference: it would still be the same design. I am convinced that, in a way, this judgment will set a precedent. For me, it certainly is. I have no intention of letting go of any company that takes too much inspiration from NAC Amber's designs.
Sounds like a threat...
Understand me well: I don't want to scare anyone. With all the really tremendous effort I'm putting into building my business, I don't see any reason to accept that someone is stealing from me the results of my hard work. How is copyright theft different from stealing a car? It's not my avidity or desire to do someone harm, it's the need to assert my rights. Isn't the theft of the first design the best time to say stop and start countering it? What assurance do I have that in a moment someone won't copy my next designs, or maybe even my entire range? Should I stand by and watch it all happen?
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