THE LEGAL NATURE OF THE KNOW HOW AND ITS IMPACT ON THE EFFECTIVE MANAGEMENT OF THIS RESOURCE IN ENTERPRISE

Acquisition and effective use of intangible assets is one of the basic objectives of management decisions of enterprises. One of such resources is know-how-how. Effective management of this resource and use in the course of trade determines its legal nature. The study attempts to approximate the essence of know-how, with an indication of the legal context that significantly affects the management of this resource in the enterprise.

In addition, these resources are generally not unique, which means that any organization can have them. In practice, every enterprise to operate should have a certain amount of capital resources. It can therefore be assumed that all enterprises may have similar (in terms of type) capital resources.
The capital resources consist of physical resources (for example, buildings, devices, machines) and financial resources of the organization that are in its possession and possible to gain [13]. The most important and common feature of these resources is their source character and limited incidence. In addition, these resources are generally not unique, which means that any organization can have them. In practice, every enterprise to operate should have a certain amount of capital resources. It can therefore be assumed that all enterprises may have similar (in terms of type) capital resources.
These features of material resources, especially their progressive constraints, have changed the significance of these resources in the context of the adopted development paradigm in the global system and in the business strategies of the organization, due to the ever-increasing human needs, rapidly dwindling material resources and worrying demographic growth on a scale global.
The new paradigm of Knowledge-Based Economy (KBE) [2] for the basic resources of the organization recognizes human and intangible resources, which condition the uniqueness and separateness of the enterprise, and also decide about building its competitive advantage.
Human resources are the characteristics of employees (physical and mental, as well as the nature of the employee and his health and the associated vitality) and their competences (skills, knowledge and experience). In comparison to other resources, human resources are constantly gaining in importance, although the approach to the features, most accented and most desirable by enterprises is changing.
Modern organizations are looking for creative employees, talented, ready to change, taking risks and responsibilities, self-managing, thinking and constructively critical. Innovative organizations create creative teams in which more and more decisions are made by employees, and the delegation of decision-making powers to lower levels is an organizational rule [17].
As for intangible resources, there is no single complementary definition that would describe this concept. It is also not facilitated by the fact that intangible assets relate to values that can not always be captured in material form. It is generally accepted that these are knowledge-based resources and include intellectual property protected legally, relationships and networks, knowledge and skills of employees, as well as organizational culture [7].
As A. Koźmiński and D. Jemielniak [10]: write: "Intangible resources are primitive in relation to material and perfectly fluid in the sense that they can be transformed into any the material resource (eg proper contacts can be exchanged for both the source of financing and the possibility of using real estate) are the most important in the modern world".
The resources in question have specific features that distinguish them from material resources. According to E. Głuszki [4], they are realized through people, are mutually they can be simultaneously used for many different applications at the same time.
Intangible resources differ from material resources also in the way they originate. Sometimes, for example, a new technological solution is developed and tested even for several years, the product brand is shaped over the years, etc.). The third feature of intangible assets is their indestructibility in use. They are difficult to follow, which makes them unique and unique resources.
Other significant differences between material and non-material resources that show the importance of intangible assets relate to [11]:  places in conventional accounting systems -material resources are visible, quantified  components of the balance sheet, while intangible assets are usually non-quantifiable;      intangible assets are dynamic, they can disappear if they are not used or suddenly lose value;  legal protection through property rights -material resources are subject to full and strict protection, which is easily enforced, while intangible assets are subject to specific protection, often difficult to enforce in practice, and not all elements of these resources can be subject to the same legal protection. Additional aspects that distinguish good intangible from material are [8]:  the possibility of using simultaneously in many places and processes knowledge can be used in different markets, because it is not limited by time or place,  long-term accumulation, which is connected with the fact that intangible goods do not create overnight, but require creative work on their development.
The increase in the importance of the discussed resources in the business operations of enterprises was influenced by many factors, among which one can distinguish, among others:  extension of the scope of intellectual property rights and more effective options protection of knowledge;  development of the Internet and information technologies;  the occurrence of the intellectual leverage effect that was the result of the use of knowledge in creation new products, services, processes and structures [8].
Intellectual property is the sum of the products of the human mind, the results of creative work, talent, imagination, creativity and inventiveness, and specific outlays (time, financial and material capital, the current state of technology). When they arise in an organization, they are used as intangible assets in the process of producing further goods and services.
The uniqueness of products of the creative work of the individual, and at the same time their economic and development importance determine the framework of their protection, which is manifested by the legal monopoly guaranteeing exclusivity in the field of professional and profitable use of these resources. The guarantee of this exclusivity is patents or protective rights granted by the Patent Office. Another way of securing intellectual resources is knowhow, meaning protection within an organization, which treats these resources as confidential, giving them the clause of "business secrets".
The intellectual property monopoly, determine the so-called intellectual property rights that expose one of the intellectual property attributes of the ability to protect [3]. Human achievements in the sphere of intangible assets are a derivative of the effort and resources, as well as creativity and talent, taking into account the current state of knowledge.
Combined with the material potential of the organization, they determine its position on the market. Maintaining intellectual resources, as well as the need for their continuous development are expensive, hence the justification for incurring high expenditures is waiting for generation of higher production efficiency, sales growth and, consequently, higher incomes, thanks to these resources. In this situation, it is necessary to secure the intellectual resource and take maximum advantage of the priority of the new product developed on its basis on the market.
The concept of security should be understood as a set of actions to retain value in the organization, both in relation to the current management as well as the organization's strategy.
The lack of such protection may result in fast imitation of products by competitors and thwart the strategic plans of the organization, and even threaten to generate significant losses. The ability to protect as a resource characteristic of intellectual property determines the process of managing intellectual property in the organization in the operational dimension. Taking into consideration the existing literature and published research results, it can be stated that the decision on the application of appropriate tools for the protection of intellectual property depends on many factors, including on the type of resources owned, the industry in which the organization operates, the amount of costs incurred for protection as compared to the costs of losing the market position created by these resources.
Specifying the legal nature of the resource, which is know-how, requires the analysis of provisions containing this concept. The Polish Act of 30 June 2000 Industrial Property Law (Journal of Laws of 2003 No. 119, item 1117 with later amendments) does not explicitly use this term (The Supreme Administrative Court in Warsaw also tried to define the know-how in a judgment of 31 July 2003 (reference number: Akt III SA 1661/02). The court explains in the term "confidential" means that the subject of the contract is not widely available and known, the term "significant" means that the information is valid and non-trivial, and the term "identified" means that it is described or recorded in such a way that it is possible to check that it meets the criterion of confidentiality and materiality). However, a short definition of knowhow can be found in tax regulations, which define know-how as information related to knowledge and experience gained in the field of industrial, commercial or scientific.
The statutory definition of know-how is also not included in the provisions of Polish civil law. In turn, in the regulation of the Council of Ministers of 30 July 2007. on the exclusion of certain types of agreements regarding technology transfer from the prohibition of agreements restricting competition (Journal of Laws No. 137, item 963) know-how is defined as not disclosed to the public technical or technological information or organization and management principles within the meaning of art. 2 para. 2 point 2 of the Act on Competition and Consumer Protection of February 16,2007, which are important from the point of view of manufacturing goods covered by the contract and which have been described in a manner allowing for verification of the criterion of confidentiality and materiality. In a comment to this regulation, A. Piszcz [14] writes that information not disclosed to the public should be understood as information that is not widely available and known. However, T. Skoczny, A. Jurkowska and D. Miąsik [15] indicates that it is permissible that not all of the information composing the know-how packet is unknown, however the ones that are decisive from the point of view of economic exploitation of the shared knowledge must remain secret.
The technical information mentioned in the definition is understood as information about technology, that is, referring to all methods and methods of influencing matter; they are intended to meet the practical needs of man and are within their scope general methods of manufacturing goods [14]. However, technological information is a subtype of technical information and concerns more detailed issues chemical formulas, formulas and methods of operation.
The last group of information referred to in the above-mentioned definition is organization and management. These are non-technical information, which in principle relate to the way the entrepreneur operates on the market; in this category we include, among others ways of conducting marketing campaigns, methods of maintaining supplier and recipient bases, pricing policy, methods of organizing sales, budgeting methods, accounting systems, ways of raising funds for operations, organizational structure, rules of information flow and document flow, methods of quality control of goods and services, employment policy , organization of work, amount of earnings.
It should be emphasized that the understanding of the concept of know-how included in this regulation can not be transferred to other legal acts, because they apply only to the matter regulated by the Act on consumer protection and competition. However, for the entrepreneur concluding contracts regarding the use of this resource, the usefulness of this definition is not questionable. In addition, in the case of technology transfer agreements referring to know-how, the relevant Commission Regulation (EC) No 772/2004 can be used to support the application of art. 81 par. 3 of the Treaty to the category of agreements on the transfer of technology, which defines know-how as a package of unpatented practical information resulting from experience and research, which information is secret, that is, they are not widely known or easily accessible; important, that is, important and useful from the point of view of manufacturing the products covered by the contract and identified, i.e. described in a sufficiently understandable comprehensible manner, to be able to check whether they meet the criteria of secrecy and materiality [1].
Highlighting the previously unresolved parts of the general problem to which the article is devoted. The above review of normative terms indicates that in the domestic legal system, not only is there no uniform definition of know-how, but there is also no law that would provide know-how protection with absolute law, effective against third parties. This means, as M. Mioduszewski [12] writes, that, unlike copyright, inventions, trademarks, industrial designs, etc., know-how is not protected by an absolute law that is effective for everyone. The lack of ownership of the know-how not only determines the legal nature of this resource, but also affects the management of this resource and its use in the course of trade. "Since there is no exclusive right to know-how, trading it can not consist -as in the case of intellectual property object capable of being the subject of such contracts. This is due to the so-called numerus clausus principle of intangible property rights, which means that intangible goods are protected only by such rights as are provided for in relevant laws. If a given intellectual property right is not in the statutory catalog, it can not be created independently, for example for the purpose of concluding a given contract " [12].
Formulation of the purpose of the article (statement of the problem) is to characterize a special type of intangible resource belonging to intellectual property, which is know-how in the organization. Effective management of this resource and use in the course of trade determines its legal nature. Unlike copyrights, inventions, trademarks, etc., know-how is not protected by an absolute law that is effective for everyone. Lack of ownership of knowhow, contrary to the situation that occurs, for example, in the case of copyright works means the need for a different approach to managing this resource, and the trading of know-how can not rely  as in the case of other intellectual resources  on the sale of rights (transfer rights) or a license, because there is no object to be subject to such contracts and the trading of knowhow can not rely  as in the case of other intellectual resources -on the sale of rights (transfer of rights) or licenses, because there is no object capable of being the subject of such contracts.
Statement of the main material of the research with full justification of the scientific results obtained. In the process of managing intellectual property as an intangible resource of an organization, it is important to understand the differences between individual types of intellectual property. As R. Golat [5], writes, know-how is a special kind of intangible good, because it is not a completely autonomous good, not showing any connections with other types of intangible goods. On the contrary, the author writes that know-how can often be considered as a different type of intangible asset at the same time. On the contrary, writes the author, know-how can often be considered at the same time as another kind of intangible good. In this situation, it is reasonable to define know-how as a whole of technical and non-technical knowledge (commercial, administrative, organizational, financial), useful for performing a specific type of business. They can be defined as the whole of the achievements and achievements, experiences, practices and procedures that the company has accumulated during its economic functioning. All this accumulated knowledge about the company's operation Volume 3, No 3, 2019 ISSN 2522-9087 (Print) ISSN 2523-434X (Online) 12 affects the way the service is performed or the production of goods, distinguishing them from the goods and services of competing companies. In practice, know-how is often presented as a company secret, whose legal definition is found in art. 11 para. 2 of the Act of 16 April 1993 on Combating Unfair Competition "Business secrets are understood as technical, technological, organizational information of an enterprise or other information having an economic value, which as a whole or in a special combination and their elements are not commonly known to people dealing with this type of information or are not easily accessible to such persons, if the person authorized to use the information or dispose of them took, with due diligence, act to keep them confidential (Article 11 paragraph 2 of the Act on Combating Unfair Competition: Journal of Laws of 2018, item 1637).
Comparing the know-how and company secrets, there is no doubt that many common elements can be identified. However, both concepts should not be used interchangeably. Knowhow is information related to the commercial or service activities of a company.
The company's secret is a much broader concept and besides the know-how it also includes information on the financial state and financial obligations of the company, employees and details of contracts concluded with them, etc. Furthermore, not all information is protected as a company secret will be protected as know-how. A positive aspect of this situation, however, is that the company's secret, broadly defined in the legal provisions, allows the use of knowhow within the framework of general protection, to which the company has the right on the basis of fair competition between entrepreneurs. On the other hand, thanks to know-how, nontechnological information can also be protected. Such information may be provided, for example, on the basis of licensing agreements that specify the principles of confidentiality and information security.
The lack of exclusive rights to know-how means that the process of management and economic exploitation of this resource must be based on confidentiality. Confidentiality is accompanied by an obligation not to engage in competitive activity. These are the fundamental pillars of the protection of know-how, and at the same time the basis for building a structure of efficient circulation of procedural knowledge.
For information to remain confidential, managers should take adequate measures to preserve their confidentiality both at the interface with the external environment and within the organization. Concluding a confidentiality clause in contracts with contractors or signing confidentiality agreements protects an enterprise against unfair competition. Concluding a confidentiality clause in contracts with contractors or signing confidentiality agreements protects an enterprise against unfair competition. The subject of a correct and effective agreement regarding the disclosure of know-how should be confidentiality and non-competition clauses, extended in such a way that:  the access to know-how is committed to providing specific knowledge (know-how) designated to the person in the defined circumstances;  the entrepreneur providing the know-how obliges the buyer to keep the information received confidential;  the "acquirer of know-how" undertakes to use the knowledge made available to him in accordance with the in-law of the contract and to keep confidential the information provided to him.
The aforementioned elements constitute the key content of contractual obligations regarding the turnover of know-how. They also allow the creation of a business model that, according to M. Mioduszewski [12], may remind  depending on specific conditions -the transfer of intellectual property rights or a license to use them.
If the know-how is to be an effectively used resource of the organization, it must be deliberately shaped, it must be covered by professional management covering such processes as: planning, organizing, controlling and protecting. For the process of managing this resource, it is also necessary to fully understand the characteristics of know-how and introduce appropriate procedures for its protection in the enterprise. Know-how should be understood as a set of practical information of a technical or technological nature, or information about the organization and management principles resulting from the experiments carried out tests or tests, provided that they remain unpatented and not disclosed to the public, and whose essence and value lies that they may be necessary for the production of specific goods or the use of certain technologies in the field to which they refer. Such know-how may be, for example, information collected for the purposes of the computer game being created. If the entrepreneur intends to use this information as an attractive product in the market, it is necessary to apply appropriate security and adequate legal protection.
This protection is specific because it combines elements of protection that industrial property law provides (for example patent protection), copyright (protection of property and personal rights, for example to a computer program), and protection under business secrets, which is formulated in the Act on combating unfair competition (eg protection of the document flow system in the employer's enterprise).
In industrial property law, instead of protection of know-how, we only have references pointing to unreported inventions (inventive projects) that constitute the entrepreneur's secret, which may be a separate subject of use regulated in the contract. In this situation, a contractual determination of the nature of the protection will apply. Thus, for example, in the agreement on the use of know-how having the form of an invention (not patented), the term "license" should be used and the provisions of industrial property law regarding the license agreement for the invention protected by a patent should be applied to it.
The characteristics of know-how show that it is not tangible matter (device, solution, program, etc.), it is not formally protected (there is no registration of exclusive rights, fees, etc.), it is not limited in time (there is no expiration of ownership rights), it is not subject to the level of inventiveness (it does not have to be new, inventive, etc.). By contrast, the inherent nature of know-how results in one essential feature: confidentiality of information. Therefore, the key to securing and protecting know-how is to ensure the security of information that is of economic value for the enterprise. The resource that is to be a source of competitive advantage for the organization must be protected. This applies to both protections against external, as well as internal, random and intentional threats (passive and active) [11].
A. Żebrowski points out that the greatest threat to the resources of knowledge are people -their mistakes and mistakes, but also targeted actions that boil down to destroying intellectual resources, distorting and deleting information, etc. [21].
In this situation, it is extremely important and necessary to identify the company's information and knowledge resources and to define the requirements for their protection (including the level of acceptable risk). Thanks to the formal definition of rules, rules and procedures and covering all employees of the company, the security of information exchange inside and outside the company will be ensured, and the knowledge and skills previously stored in employees' minds are registered and become the property of the company.
As L. Kiełtyka writes, from the point of view of security and information protection, the most important resources are: information (paper documents, electronic information, databases), software, physical resources (buildings, IT equipment, devices). human resources, intangible goods (image of the enterprise) [9].
The key aspect of know-how management is the development and supervision of documentation that will identify the information constituting the know-how and requirements on the basis of which knowledge and information with asset value for the organization will be secured. The security of information and knowledge identified in the company as a know-how should cover the following areas: control of acquisition, production and processing of information and knowledge, safe distribution of these resources, monitoring of information and knowledge 'paths' in the organization structure, staff training in security procedures. Properly designed rules of know-how management, rules of conduct with documentation of know-how, training of employees in the field of know-how and its importance for the company, are the framework and foundation on which the management system of this resource in the organization is built.
Contracts with employees, co-workers and contractors whose content is confidential are also important. Contracts should include a clear indication of information to be protected and not disclosed to third parties. In practice, the scope of information protected as a company's know-how is sometimes so wide that it is not possible to indicate their exactness in the contract. Therefore, it is worth additionally, in the daily circulation of information and documents in the company, to inform employees, employees, suppliers or contractors that the information is confidential and should be kept confidential.
It is good practice to regularly refresh access passwords in company computers and programs for receiving an electronic mailbox and to introduce in the enterprise the habit of destroying unnecessary documents. A know-how-oriented company should also ensure safe storage of valuable documents: contracts, research results, development plans, technical information or important correspondence, and have control over who visits the company and which rooms it has access to.
Conclusions from this research and prospects for further developments in this area. Know-how is one of the most important intangible assets that allows the entrepreneur to build a significant competitive advantage. Despite the lack of a materialized form, this resource has a measurable economic value and can be the object of trade in the economy. This is not a law classified in statutes, but it is generally accepted that it is a good that can be disposed of or given to another entity to use it. Know-how is undisclosed and guarded knowledge. Thanks to the use of certain specific and inaccessible knowledge and skills, the entrepreneur can afford to maximize profits and minimize losses, optimize production, and even offer goods and services that are still unavailable to its competitors. Therefore, in the process of managing this resource, its security is of key importance. Securing the know-how is not only about protecting the commercial potential of knowledge and information, but also reducing the risk of losing it.