In Poland, the system of compensation for authors and other rightholders for private copying relies on fees charged per device or data carrier used for this purpose.For many years, authors and collecting societies have pointed out that the system in Poland is not in line with EU law due to the remuneration this generates being glaringlylow, and that therefore it does not qualify as fair compensation. According to them this is because the fees in Poland are charged on devices and data carriers, which are no longer on sale, or trade in them on the market is minimal.
Under art. 5(2)(b) of Directive 2001/29/EC[1], member states may provide the private copying exception of the reproduction right on condition that the rightholders receive fair compensation for the works or subject-matter concerned. According to CJEU case-law, fair compensation must be calculated according to the loss incurred by authors of protected works as a result of the private copying exception[2].
Polish law provides for permitted private use[3], and the associated compensation based on fees paid by producers and importers[4]. The fees are calculated according to the sale value of devices and blank data carriers used for reproduction of works[5]. The categories of the devices and blank data carriers, and the fees, are specified by the minister responsible for culture in an executive regulation.
Under the currently applicable regulation[6], the list of devices and data carriers for which fees are charged include cassette players, video cassette players with a recording function, television and video sets or television sets with a DVD drive, VHS and VHS/D cassettes, and HD DVD-R and DVD RAM disks. Today these play a very small or no part in the market. Meanwhile, this list does not include devices and data carriers commonly used nowadays, such as smartphones, laptops, or for example tablets.
The Minister for Culture and National Heritage in fact raised this issue and proposed changing the current compensation rules in a proposal for a bill on rights of professional artists[7]. It was observed in the statement of reasons for the bill that in most European countries, fees are charged on modern devices (computers, tablets, smartphones) and data carriers (disks, memory sticks) (…) as a result, for example in Germany, fees on audio-video devices and blank data carriers alone generate more than EUR 330 m per year. In Poland, by analogy, the respective fee is charged in particular on cassette players and video cassette players, and the proceeds are no more than EUR 1.7 m per year, and decreasing (…).
As work on these bills was not finished, the collecting society dealing with rights to audiovisual works – the Polish Filmmakers Association (Stowarzyszenie Filmowców Polskich) – filed a lawsuit with the division of the District Court in Warsaw responsible for intellectual property cases, against the State Treasury in mid-October, seeking more than PLN 4 m in damages for failing to provide for fair compensation in Polish law as required under art. 5(2)(b) of Directive 2001/29/EC. The outcome of this case could have major implications for authors and their legal successors, and also the collecting societies representing them, in the fight for fair compensation, with regard to both the past and the future.
Author: Jacek Piasta
Footnotes
[1] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Official Journal L 167, 22/06/2001 P. 10 as amended).
[2] Court of Justice judgment of 21.10.2010, C-467/08, PADAWAN SL v. SOCIEDAD GENERAL DE AUTORES Y EDITORES DE ESPAÑA (SGAE), ZOTSiS 2010, no. 10B, item I-10055.
[3] See art. 23 of the Act on Copyright and Related Rights of 4 February 1994 (Journal of Laws of 2022, item 2509, the “Copyright Act”).
[4] Fees are paid also by the owners of reprographic devices, whose economic activity involves reproducing works for the private use of third parties (3% of the proceeds from such activity).
[5] See art. 20 of the Copyright Act.
[6] Minister of Culture Regulation of 2 June 2003 specifying the categories of devices and data carriers used for recording works and the fees charged on the sale of those devices and data carriers by producers and importers (Journal of Laws No. 105, item 991, as amended).
[7] Bill on rights of professional artists, UD208. Along with the proposal for a bill on rights of professional artists, a proposal was also submitted for a regulation listing the types of devices and data carriers on which a fee will be charged, and the amount of the fee.