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What does Jan Brzechwa have to do with the Polish colonies?
While studying the achievements of Jan Brzechwa, also known before the war as Jan Lesman, attorney-at-law, one can come across an article in “Wiadomosci Literackie” (Literary News) of August 1931 entitled “For respect of copyright”.
The style Brzechwa used to describe copyright around the world in that article differs, however, from the one the author usually used in his other publications. It ends with the sentence: “The crime was committed, and dressing common piracy in the gown of Cato [Polish idiom describing stern lecturing] must fill every objective observer with disgust”.(1)
What made the famous Warsaw copyright specialist so angry?
Maritime and Colonial League Propaganda
The Maritime and Colonial League (Liga Morska i Kolonialna) was a social organization dealing with matters of sea routes, fleets, and, in the interwar period, also the possibility of Poland acquiring any overseas colonies. It was headed by general Gustaw Orlicz-Dreszer since 1930. The organization also dealt with propaganda activities, including the issue of territorially limited access to the Baltic Sea that Poland had in the interwar period.
In June 1931, the most-read Polish daily newspaper, Krakow’s „Ilustrowany Kuryer Codzienny” (“Illustrated Daily Courier”), featured an article about Polish Pomerania written in opposition to the positions of German scientists. It was written in the language of propaganda, proving the Polishness of Pomerania in a rather shallow but decisive way and calling for a broad reaction. The article contains two graphics: a map of Pomerania from 1921, indicating the location of the borders of the Free City of Gdansk, East Prussia, Germany and Poland, as well as a timeline indicating the periods during which Pomerania was under the rule of the competing states, entitled “graphic depicting Pomerania’s belonging to states over the past centuries”.(2)
Copyright and Social Reality
A month later, a national scandal broke out in Poland over copyright for the propaganda materials. It turned out that the materials published by the Illustrated Daily Courier in June 1931 were sent to the editors by the Maritime and Colonial League, but the editors did not receive any explicit permission of the publisher of these materials or their author for a direct reprint. Furthermore, the reprinted materials were most likely modified to remove the original author’s name from the copied graphics. Therefore, the Maritime and Colonial League issued a dry legal request to the Illustrated Daily Courier to pay for copyright infringement.
Although today such a letter might have gone unnoticed, in 1931 the case took a rather unexpected turn. The editors of the journal were outraged and on the first three pages of the July 27, 1931 edition published the request for payment they received, stigmatizing all who were signed on it, as well as pointing out the practices of Warsaw social organizations, which, according to the editors, abused patriotic slogans for profit. The editors called for a nationwide boycott of the Maritime and Colonial League, and the government to immediately intervene and stop subsidizing this organization. The article did not quote the payment request simply, but contained question marks and exclamation marks at every amount requested, at almost every legal term (such as compensation and penal payment (“pokutne”)), and even at the rank of a league secretary signed on the request. When explaining their reprint of graphics, the editors stated that “by the way, the brochure and graphics were not revelations, but primitives,” and the text is divided with headings such as: “Shame!”, “Bright proof of social immaturity”, “Bill, which is a scandal” and “Society must respond.”(3)
The text of the “Illustrated Daily Courier” brought the expected reaction. The case was described in military press, due to the person of the League’s president, General Orlicz-Dreszer. He himself assured in letters to the editors of Warsaw magazines that he would “defend his honor” (read: duel), and also resign (probably it did not happen, because he led the League until his death in a tragic aircraft accident in 1936).
The press defended the general who was not to know about the payment request and was not signed on it. Resignation from the board was made by all the signatories on the payment request, but they were not accepted because of the dispute. The case also went to court, because of which the editors of the Illustrated Daily Courier were, as they wrote, very pleased.(4) According to the news reports, most of the interwar Polish press supported the position that social and patriotic activities should not create grounds for copyright infringement requests for payment. The fate of the organization working on the issue of potential Polish overseas colonies has been called into question.
Jan Brzechwa’s Appeal For Respect of Rights
Returning to the article ‘For respect of copyright’ by Jan Brzechwa (signed at the time under the article with his original name, Jan Lesman), one can understand the author’s indignation at the state of Polish society’s lack of awareness of the author’s rights. To this day, the crown argument for those who do not care about the author’s protection is often criminal law, and Brzechwa used this argument in his rather extensive polemic. He described that copyright infringement was a criminal offense in France, Austria, Norway, Italy, Portugal, Czechoslovakia and Liberia, citing the relevant provisions. He wrote that French jurisprudence dating back to the 19th century confirmed that the reprint without the author’s permission infringed copyright, and the Besancon judgment of 1902 confirmed that the materials sent to the editors became their property as physical items, but not with respect to their content.
Today, deciding about someone committing a crime in the press does not happen very often, and, if it happens, it usually ends in court. However, in his 1931 text, Jan Brzechwa wrote without hesitation: “act committed by the Illustrated Daily Courier brings together the most important and the most serious features of a crime against copyright. Reprinting took place without the author’s knowledge and permission, with the removal of his name and for profit. “(1) For Jan Brzechwa, the arguments about the public interest were not convincing, because no one required free service, as he points out, from the clergy, members of parliament or from patriotic writers such as “Żeromski, Świętochowski and Sieroszewski”. Jan Brzechwa interpreted the exceptions of copyright protection narrowly, emphasized the obligation to indicate the author and the source of the borrowed work, as well as the personal rights, which were still called moral or “spiritual” in the interwar period.
What can be seen from the text written by Jan Brzechwa is the outrage of the Polish intellectual elite, which faithfully subscribed to “Literary News”, at the lack of understanding in Polish society of intellectual property rights and of Poland’s leading role in the development of this area of law at the time. In the interwar period, the newly reborn Poland had one of the most modern copyright laws in the world, from the beginning acceding to the Berne Convention and quite quickly amending national law in this area. Organizations such as ZAiKS, founded in 1918, of which Jan Brzechwa was one of the founders, also played an important role in protecting authors’ rights.
A Long-Established Dispute
The case of the Maritime and Colonial League against the “Illustrated Daily Courier” is a great example of the long-established dispute about how we should protect intellectual property. It often happens that claims based on copyright infringement are counterproductive and even further harm the author. Excessive enforcement of these rights can even end in a tragedy (the famous case of suicide of 26-year-old Aaron Swartz accused of a crime of copyright infringement related to scientific articles collected on the JSTOR platform).
For the Maritime and Colonial League, the case ended favorably – not only did the organization gain momentum, but four years later it published its own addition, “Maritime and Colonial Courier”, in the Illustrated Daily Courier.(5) It could have ended differently, however, because the campaign unleashed in response to claims for copyright infringement (after all, quite up to standard) by the editors of the Illustrated Daily Courier was definitely disproportionate and could get out of control, if not elsewhere, then during the duel announced by General Orlicz-Dreszer.
In the era of the Internet – which Jan Brzechwa did not experience, having died in 1966 – questions about the right shape of copyright protection and exceptions necessary for the public interest remain valid. Even greater scale is possible today than was possible before the war, at the time of Krakow’s Illustrated Daily Courier, and the social impact of the media may be even more difficult to predict. That is why lawyers should understand the realities of the modern world.
Ewa Fabian, attorney-at-law, Gdansk March 26, 2020
This text was prepared under the public grant from the Polish National Science Center, NCN nr 2018/29/B/HS5/02729.
(1) Jan Lesman, O poszanowanie prawa autorskiego, Wiadomości Literackie 16 August 1931 No. 33 (398).
(2) Odwiecznie polskie Pomorze mimo niemieckiego najazdu było i jest polskiem, Ilustrowany Kuryer Codzienny 1931, No. 176 (28 VI) p. 2-3.
(3) „Obrona polskiego Pomorza” za… 9.711 zł. Skandaliczna wyprawa warszawskiej Ligi Morskiej i Kolonjalnej…po flotę i kokosy, Ilustrowany Kuryer Codzienny 1931, No. 205 (27 VII) p. 1-3.
(4) Propaganda Pomorza – Liga Morska i Kolonjalna i odgłos artykułu „IKC”, Ilustrowany Kuryer Codzienny 1931, No. 211 (2 VIII) p. 4.
(5) M. A. Kowalski, Polskie postulaty kolonialne na łamach „Ilustrowanego Kuriera Codziennego” [in:] A. Malewska Szałygin, M. Radkowska-Walkowicz, Antropolog wobec współczesności, Instytut Etnologii i Antropologii Kulturowej UW 2010, p.340-341, http://cyfrowaetnografia.pl/Content/4651.
Jan Wiktor Lesman (aka Brzechwa) was not only a famous poet and storyteller. He was also a distinguished jurist in Poland. How is it possible that he was completely forgotten by lawyers in Poland?