Are instructions for an insurance package a copywritable work?

The Supreme Court has found that the idea of an insurance package written in the form of instructions for its use is a work and is subject to copyright protection. It is worth noting that a concept or an idea does not constitute a work within the meaning of the provisions of the Copyright and Related Rights Act of 4 February 1994, and they are not protected under these provisions.

In the case in question, the plaintiff, who was an insurance agent working for an insurance company, developed (beyond the scope of his responsibilities) a draft insurance package and suggested that the company introduce it. He then provided written instructions for the proposed package. The package covered property insurance combined with motor vehicle insurance. The instructions described in detail the subject of individual insurance policies included in the package, exclusions from coverage, scope of insurance, as well as limitations of liability, the premium amount and the methods for defining it.

When establishing the facts, the Regional Court held the study in the form of instructions for the insurance package was a work within the meaning of Article 1 Section 1 of the Copyright and Related Rights Act. The Court pointed out, inter alia, that “the study took a tangible form, which was reflected in the writings” of the package’s author addressed to the insurance company. In addition, the Court reasoned the study (package) was not a simple compilation of insurance products, but was also “original and innovative.” The Court of Appeal dismissed the appeal, agreed with the facts established by the court of first instance and dismissed, among others, the defendant’s claim that there has been a violation of Article 1 Section 1 of the Copyright and Related Rights Act. The Court of Appeal upheld the argumentation of the court of first instance that the draft met the eligibility criteria to consider it a work.

The case went to the Supreme Court, which found the violation claim – as presented in the cassation complaint – with regard to Article 1 Section 1 of the Copyright and Related Rights Act unreasonable, indicating that the study in the form of a draft insurance package (instructions to this package) was a product of the plaintiff’s activity, it has been preserved, exhibits creative elements and has original features. In the Supreme Court’s view, there were no grounds for excluding the study from the copyright protection under Article 1 Section 2¹ of the Act, since “it was not a procedure, a method or a principle of operation, but a way of expressing specific principles for conduct, whereby establishing them was a creative and individual process.”

Protection of the way of expressing ideas or concepts

The essence of the Supreme Court’s ruling boils down to answering whether the very idea, in this case the insurance package, can be protected by copyright, even if it has been preserved, exhibits creative elements and has original features. One of the basic principles of copyright, indicated in Article 1 Section 2¹, is the lack of protection granted to: discoveries, ideas, procedures, methods and principles of operation, as well as mathematical concepts. Copyright protection covers only the way of expressing a work. Ideas or concepts cannot be the subject of exclusive rights, merely due to the fact that they are part of reality, and cannot be created (as a result of one’s activities), but at most discovered. Protecting ideas would mean monopolizing them – lack of free and unrestricted access to them by all of us. Therefore, creating works based on an idea or a concept does not violate the rights of other creators who previously “expressed” it in their own way. Everyone has the possibility of expressing themselves, and only such expression is subject to copyright protection.

Sustaining ideas

The above mentioned principle is not altered by the fact pointed out by the courts in all instances, namely that the idea was “preserved” in the form of instructions (in writing).  In this case, the study itself (describing a new insurance concept) is subject to copyright protection, resulting in, for example, the prohibition of reproduction or marketing of its copies without the author’s consent, but the protection does not extend to using the very concept of merging insurance policies. An analogous situation occurs in the case of an idea of a scientific work, which in itself is not subject to copyright protection, while the scientific work itself, embracing this idea, is subject to such protection. This protection becomes apparent, for example, in the obligation to name the author and the source when using the work (Article 34).

However, this does not mean depriving entrepreneurs of the protection of new business concepts they develop, which often have a significant economic value. The business concept of selling the entrepreneur’s products can be a trade secret, which ensures it is protected under the provisions of the Act of 16 April 1993 on Combating Unfair Competition. However, it is imperative that the information has not been disclosed to the public. According to the above mentioned Act, in the case of providing, disclosing or using the information constituting a trade secret, to the detriment of an entrepreneur, can be regarded as an act of unfair competition. It is also possible to protect the created business concepts as know-how, as we have already written in our blog.

It is difficult to accept the decision of the Supreme Court and to grant the creator of a new idea the remuneration for using it under the provisions of the Copyright and Related Rights Act. The basis for the settlement between the parties should not be the provisions of this Act, but instead, for example, the provisions of the agreement binding the parties. The consequences of the Supreme Court’s ruling can undoubtedly have wide-ranging consequences, not only in the creative industry.