Read by Krystyna Czubówna’ – a few words about voice protection in Polish law

Lecturers, radio journalists and sports commentators. Representatives of all these professions, despite their often high popularity, can remain unnoticed in the street. Who could recognize Tomasz Knapik, Maciej Gudowski or Krystyna Czubowna in the street, even though the voice of the first two can be heard almost every day on the Warsaw bus or subway? This is because they are recognizable because of their characteristic voice and thanks to this can they successfully exploit it. Let us therefore consider how the problem of voice is perceived by Polish law.

Difficulties with the legal classification of voice

First of all, it is worth noting that in the Polish legal system, voice is a goods that is difficult to classify. This is due to the fact that it is not regulated as such in any law. This issue has been left to the representatives of science and court judicature.

In principle, two different views are presented in doctrine and judicature.

The first one assumes understanding the voice as an element of image, which is protected in the Polish law by the regulation of the Civil Code and the Act on Copyright and Related Rights. In this context, it should be noted that an image is most often defined as a recognisable image of a person.

Transferring this construction to the ground of voice, it is assumed that voice ‘constitutes an image perceived through the sense of hearing, thus becoming a ‘sound’ element of the image’[1]. It seems that such a view would also have to be adopted with all the consequences resulting from this title – therefore, for example, the use of voice should be subject to appropriate provisions on image contained in the Copyright and Related Rights Act, including those concerning the dissemination of the image of a commonly known person.

The second view is to consider the voice as a personal right protected on the basis of the provisions of the Civil Code as separate from the image. Despite the fact that the provision introducing protection of personal rights, i.e. Article 23, does not mention a voice among the rights listed widely, the catalogue contained in this provision is open. As the representatives of this view point out, ‘the voice should be understood as a personal right distinct from the image, but serving the same purpose as the external image of a human being, namely identification. [2]

Polish disputes

Polish courts have had to face this subject twice so far. The first ruling was issued in 1991 in a case pending before the Court of Appeal in Gdańsk. The court expressed the view that the provision of Article 23 of the Civil Code ‘covers not only, for example, the image of a human being mentioned in that provision, but also his voice broadcast e.g. on television. Publication of the images of the plaintiffs and issuing their votes without their consent, or even contrary to their explicit prohibition in this respect, is not justified in the wording of Article 14(6) of the Polish Press Code’ [3]. Thus, by contrasting the image with the voice, it was considered that the voice is a personal good separate from the image. We can see, therefore, that in the judgment delivered almost 30 years ago, the Court of First Instance opted for the second position.

In the second, more contemporary, case the Supreme Court, in turn, took the first view. It was pointed out that the voice ‘should be protected within the framework of the right to an image, since it is its element not as a physical (visual) image of a given person, but as an image perceived by means of hearing. The personal right to the human voice should be treated as a sound image, provided that it is recognisable to third parties. This means that the voice of a person must be sufficiently distinctive and distinctive to identify the specific person from whom it originates. [4]

This means that, in the light of this judgment, the voice of the persons mentioned in the introduction to this text is part of their image. Undoubtedly, the voice of Maciej Gudowski or Tomasz Knapik is so characteristic and distinctive that it is possible to identify a specific person by name.

Voting protection measures

Turning to more practical issues, it should be pointed out that regardless of the adopted qualification, a person whose voice has been violated is in fact entitled to the same claims (Article 78 of the Copyright and Related Rights Act and Article 24 of the Civil Code). They include the demand:

• to refrain from such action,
• to complete the actions necessary to remove the effects of such action, in particular that the infringer makes a statement of appropriate content and in an appropriate form – i.e. a request for an apology in the place indicated by him/her,
• financial compensation or payment of an appropriate sum of money for a specified social purpose,
• compensation on a general basis.

‘Let’s get ready to rumble!’

It is also worth noting that a specific form of protection of a voice or in fact of certain sayings or slogans may be their registration as a trademark. Such registration gives the possibility of a commercial monopoly on the registered sign for a practically unlimited time. For while trademark protection is granted for 10 years, it is possible to renew it indefinitely.

No wonder that the famous boxing announcer and presenter Michael Buffer has registered his famous cry ‘Let’s get ready to rumble!’. Thus, he secured his monopoly and the possibility of merchandising, i.e. the production of t-shirts, mugs or other gadgets. It seems, therefore, that in the case of specific quotations or characteristic sayings, their registration as a trademark seems to be the right solution, both from a legal and marketing point of view.

Artistic performance

Finally, it is worth distinguishing between the issue of voice and the issue of artistic performance. Artistic performance is, in short, a separate good that belongs to all performers of music pieces and works of folk art, including vocalists and singers. It should be stressed, however, that this protection is focused on another aspect. Namely, the content that a given voice transmits (and thus the performance of a specific work itself), and not the voice as such.

Conclusion

In the light of the above described conclusions, it should be pointed out that due to the lack of a clear statutory regulation, the voice is quite a ‘troublesome’ good. The axis of the dispute in this case is the way in which the concept of image is understood, or in fact its width. By understanding the arguments of both sides and not prejudging this issue unequivocally, in my opinion, the voice, in the case of people such as those mentioned in the introduction, is a component of their image. The key element is the ability to recognize and identify a specific person – which in this case is undoubted.

It seems, however, that until there is clear statutory regulation, this issue will remain disputed.

[1] J. Sieńczyło – Chlabicz, Dissemination of the image on the basis of the Copyright and Related Rights Act, “Legal Adviser” 2001/2, p. 92.

[2] J. Balcarczyk, Prawa do głosu – zarys problematyki, ZNUJ 2010/2/115-126, electronic access.

[3] Judgment of the Court of Appeal in Gdańsk of 21.06.1991, ref. no. I ACr 127/91, OSA 1992/1, item 8.

[4] Judgment of the Supreme Court of 03.10.2007, ref. no. II CSK 207/07, LEX no. 527097.