1. COMMERCIAL AND INDUSTRIAL INFORMATION IN POLISH LAW Jarosław Mielnik Department of Environmental Protection Ministry of the Environment

2. Developments under the current legislation Proposed amendments Intellectual property rights Agenda COMMERCIAL AND INDUSTRIAL INFORMATION IN POLISH LAW 2

3. Developments under the current legislation Information of business value, including the technology data, delivered by the third persons and covered by the business secrecy, if the act of making the said information available may have worsened the competitive position of these persons, and the said persons submitted a justified application that the said information should be excluded from the information made available. Public authority may deny the application to exclude the information from the release. Denial must be made in the form of a decision. 3 Definition of the exemption.

4. Developments under the current legislation Exemption shall not be applied, if the information concerns: The amount and types of dusts or gases discharged to the air and the place of their discharge; Condition, composition and quantity of wastewater discharged to waters or ground and the place of their discharge; Type and quantity of generated waste and place of their generation; Level of emitted noise; Level of emitted electromagnetic fields. Information on emissions 4

5. Developments under the current legislation Balance of interest Public authority needs to weigh the public interest served by disclosure against the interest of securing business secrecy. Third person needs to prove that the information for which access is to be denied has a business value and release of such information may worsen competitive position of that person. 5

6. Developments under the current legislation There is no time limitation to submit an application that the said information should be excluded from release. Applications do not provide proper grounds to recognise the information as a business secrecy. Applications in many cases concern whole documents. Public authorities do not check the reasoning in applications. At least not at the moment when the application is submitted. 6 Practical problems

7. Proposed amendments Third person should inform public authority that given information is a business secret no longer than 14 days after the day when the information is delivered to the public authority. After that time there will be no possibility to do so. Justification which is proving the grounds for denial of the information must be comprehensive. It cannot be „any”. 7

8. Intellectual property rights Differently regulated manner. Depends on the specific provisions in civil law contracts. Partly apply to public authorities. Differences between intellectual property rights and industrial or commercial information 8

9. Intellectual property rights Intellectual property rights of companies which prepared materials for public campaigns for the Ministry of the Environment. Publications prepared for the public authority. Data from public authorities used by private entities. Examples 9

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