Feasibility of constructing an open-ended and non-terminable Creative Commons license agreement under Polish law

Abstract

The basic attributes of Creative Commons licences include their perpetual nature and the fact that they cannot be terminated by either party to the contractual relationship. The latter feature is controversial from the perspective of Polish law. The question arises as to whether, in the light of the regulations in Article 68 of the Copyright Act and Article 365(1) of the Civil Code, it is permissible to conclude a licence agreement unlimited in time, the termination of which, by the will of the parties, is either excluded or significantly restricted. While some representatives of the doctrine (e.g., B. Giesen, M. Kubiak and T. Targosz) allow for such a possibility, a significant part of the doctrine represents the position according to which, in the current state of the law, it is not permissible to introduce into the content of a licence agreement concluded for an indefinite period (or for a definite period longer than five years) a provision excluding the possibility of its termination (in particular J. Szyjewska-Bagińska, M. Załucki, K. Włodarska-Dziurzyńska, M. Wyrwiński and E. Traple). In this article, the author attempts to find an answer to the controversy formulated above, to which the analysis of the views of the doctrine and the jurisprudence of Polish courts leads.