Competition rules

The organiser needs to draw up clear rules
for participating in the competition. The rules should specify, at a minimum,
the subject of the competition (the activities expected of participants), the
timetable and manner of submission of works for the competition, who is
eligible, the procedure for selecting the winners, the prizes to be won, and appeal
provisions (if any). A key provision of the rules is identification of the
prize. It might be conclusion of a contract to produce and distribute the
winning work, or it might be a cash or in-kind prize.

In the case of a competition involving
creation of a competition work, the rules should include provisions on the
criteria and parameters for the works (characteristics, technical
specifications), and also representations concerning authorship of the work. If
the organiser intends to exploit works submitted in the competition, the rules
must contain appropriate copyright provisions.

Copyright to competition works

The organiser of the competition will
acquire ownership and copyright to the winning work only if it has included
such a reservation in the undertaking to grant a prize. Then acquisition will
occur upon payment of the prize (Civil Code Art. 921 §3). If there is no
provision on acquisition of ownership or copyright in the competition rules,
the organiser will not acquire these rights.

This provision of the Civil Code does not
indicate whether acquisition of copyright must take the form of a written
contract. However, the Act on Copyright and Related Rights clearly provides
that transfer of economic copyright to other persons requires compliance with
written form under pain of invalidity. Thus, for evidentiary reasons and to
avoid doubts as to the scope of acquisition of rights by the competition
organiser, it is recommended to conclude a written contract transferring
copyright to the work.

But it is not always necessary to acquire
copyright to the competition work. More and more often organisers provide in
the competition rules that the contestant will grant a licence to use the
competition work. It should be borne in mind that an exclusive licence (like
transfer of economy copyright) requires written form under pain of invalidity. However,
a non-exclusive licence may be granted in any form (a provision to this effect
in the competition rules will suffice).

What to pay attention to in the rules or
the contract concerning the competition work

Both the competition organiser and the
participants should pay particular attention to the following issues:

• Fields (methods) of exploitation
  of the competition work—the designation of fields of exploitation sets the
  boundaries of use of the work by the organiser, and also indicates the scope of
  transfer or grant of a licence by the contestant
• Derivative rights, i.e. the possibility
  of modifying or elaborating the competition work—creation of derivative works
  based on the competition work, and disposing of derivative works, requires the consent
  of the original creator of the work, i.e. the contestant
• Territory and duration of the
  licence, rules for terminating the licence, and sublicensing rights, if the
  rules provide for the contestant to grant a licence to the organiser—it is
  important to bear in mind the controversies surrounding “perpetual” licences,
  although the
  courts are showing the first signs of permitting indefinite licences in Poland
• Moral copyright, which unlike
  economic copyright is inalienable—importantly, acquisition of copyright to a
  competition work does not deprive the contestant of protection of his or her
  moral rights
• Ensuring the participants’
  consent to use of their image—under copyright law, a person whose image is recorded
  and disseminated must
  consent to this use
• Designation of the governing
  law, particularly in international competitions—similar-sounding legal concepts
  may be regulated entirely differently in various countries (for example, a “perpetual”
  licence, derived from and permissible in the United States, would be
  controversial in Poland).

The issues mentioned above do not exhaust
the questions surrounding acquisition of copyright or issuance of a licence in
competition procedures. The rules, like a contract, should be drafted to meet
the needs of the specific competition, the works, and the organiser. And we
encourage participants to read the rules carefully.

Dr Monika A. Górska