The Appellate Court in Warsaw in its judgment of 17 October 2007 case file VI ACa 1259/06 held that the regulations provided in the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with later amendments, define the entrepreneur very broadly. This definition will even cover such entities whose activity is not associated with a typical business. This argument was confirmed by the Supreme Court in its judgment of 7 April 2004case file III SK 22/04, published in OSNP 2005/3/46.

The Court had no doubt that ZAiKS is active in providing professional services, in a structured and continuous manner, on its behalf, in the field of collective management of assigned copyrights, and thus it participates in business transactions. In applying the provisions of the APCC, “commercial purpose” as the last of the important parameters of economic activity means to obtain certain benefits for the operator of such activities. The use of such obtained benefits is, however, indifferent.

It was undisputed that ZAiKS grants licenses for fee, and it also collects appropriate fees for the management of assigned rights. Therefore it has a measurable financial benefits from its activities. The fact that these benefits are fully allocated to the statutory objectives does not mean, in light of the abovementioned comments that ZAiKS work has nothing to do with the commercial objectives.

The Court ruled that the Society of Authors ZAiKS being a non-profit organizations, is also a legal person providing services to the public, because it is organizing public access to creative activity, and licenses the use of this creativity. Therefore, ZAiKS is an entrepreneur as defined in the APCC.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Categories: Art. 104 ARNR | Art. 105 ARNR | Art. 108 ARNR | Copyright Commission | Polish Act on Authors Rights and Neighbouring Rights | Polish Act on Protection of Competition and Consumers | Polish Appellate Court | President of the Office of Competition and Consumer Protection | case law | collecting society | copyright law.