When entering into copyright publishing agreements, including those for computer games, few people anticipate that the work may not be completed or may be completed defectively. However, if such a situation arises, it is worth first referring to Article 54 of the Copyright and Related Rights Act (hereinafter "Act"), according to which:
- The creator is obliged to deliver the work within the time limit specified in the contract, and if no time limit has been specified – immediately after completing the work.
- If the author fails to deliver the work within the stipulated time limit, the ordering party may set an appropriate additional time limit for the author with the threat of withdrawal from the contract, and after its ineffective expiry, the ordering party may withdraw from the contract.
As follows from paragraph 1 of the cited article, even if the deadline for completing the work has not been specified in the contract, the work must be delivered immediately after its completion, which may in some way help the publisher if such a deadline has not been specified by the contract. However, it should be borne in mind that in such a situation it is the creator who decides when the work will be completed, as well as whether further corrections should be made to the work, thus postponing the deadline for its delivery*.
From the perspective of the issue under discussion, however, paragraph 2 is more relevant. If the author fails to deliver the work on time, the publisher may submit a declaration of intent to the author, which includes a request to deliver the work, specifying an additional deadline, and indicating the possibility of withdrawing from the contract. The first two elements are quite intuitive, but the third one should not be forgotten, as the lack of a threat of withdrawal from the contract may prevent the publisher from doing so later, forcing the publisher to resubmit the declaration containing all three elements.
In the context of the provision in question, it is also crucial to establish an "appropriate" deadline. Whether a deadline can be considered "appropriate" will depend in particular on the work that is the subject of the contract and the amount of work required to complete it. It will also be important whether the creator is obligated to deliver the entire work by a specified deadline, or a specific stage of the work, constituting part of the work. Taking a computer game as an example, if the creator fails to deliver a stage consisting of implementing compiled gameplay mechanics, the "appropriate" deadline will be longer than if the scope of work includes a few simple animations.
In the context of the issue under discussion, Article 55 of the Act is also an important provision. According to paragraph 1 of this provision: " If the commissioned work contains defects, the commissioning party may set the author an appropriate deadline to remedy them, and after that deadline has expired, the commissioning party may withdraw from the contract or demand an appropriate reduction in the agreed remuneration, unless the defects are the result of circumstances for which the author is not responsible. In any event, the author retains the right to a portion of the remuneration received, but no more than 25% of the contractual remuneration. "
Therefore, if a defective work is delivered to a publisher, the publisher may, after the deadline for remedying the defects has expired, withdraw from the contract or demand an appropriate reduction in remuneration. Copyright law uses the term "defect" instead of "defect," which more closely reflects the intangible nature of the work. An ineffective expiry of the deadline can be considered both when the creator failed to deliver the work without defects and when the delivered work still contains defects. The comments regarding the term "adequate" made in the analysis of Article 54 of the Act can also be applied to Article 55.
Under Article 55 of the Act, the key issue is assessing whether a work contains defects. A work that does not meet the publisher's subjective criteria will not be deemed defective. This provision will only apply if the defects are objective in nature**
In the case of a publishing agreement under which the work is yet to be created, the provisions on liability for defects in the work will also apply, in particular Article 638 of the Civil Code***. Consequently, in the described situation, Article 556(1) of the Civil Code, among others, will also apply accordingly, to the extent that the work is inconsistent with the agreement. Therefore, also in the case of works within the meaning of the Act, any work that lacks the characteristics that a work "of this type should have given the purpose specified in the agreement or resulting from the circumstances or purpose****" should be considered defective, or if it is unfit for the purpose of which the publisher informed the author at the time of concluding the agreement, and the author did not raise any objection to such purpose.
Therefore, if a computer game contains glitches that prevent proper use, it may constitute objective grounds for withdrawal from the contract or a reduction in remuneration. However, if the game is of a low artistic standard or is not engaging, engaging, or playable, it will be more difficult to take advantage of these institutions. However, if the parties prepared a Game Design Document at the time of entering into the contract, which detailed the game's specifications, the existence of glitches can be demonstrated by discrepancies between the actual work delivered and the one described in the document.
Moreover, if a game is of glaringly low quality and playability, it seems possible to consider it as flawed, for example by classifying it as lacking the properties that a work should have due to the purpose arising from the circumstances and intended use.
The publisher must also remember that if he has already paid the author part of the agreed remuneration, he will not be entitled to demand a refund of this amount upon withdrawal from the contract to the extent that it does not exceed 25% of the agreed remuneration.
It is also worth pointing out that Article 55 of the Act contains a provision relating to the possibility of withdrawal in the event of legal defects, but this is a topic for a separate entry.
*E. Ferenc-Szydełko (ed.), Act on Copyright and Related Rights. Commentary. 4th ed., Warsaw 2021, article 55
**Supreme Court judgment of May 27, 1958, file reference II CR 547/57
***A. Michalak (ed.), Act on Copyright and Related Rights. Commentary, Warsaw 2019, Article 55
****Article 5561 of the Civil Code
This alert is for informational purposes only and does not constitute legal advice.
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