Copyright law, case VI ACa 1259/06

March 17th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 17 October 2007 case file VI ACa 1259/06 held that the Polish Act of 16 February 2007 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 subsequent amendments, define an entrepreneur very broadly. According to the Court, this definition will even cover such entities whose activity is not associated with a typical business. Therefore, there was no reasons to deny such a status to the Polish Association od Writers and Composers (Stowarzyszenie Autorów – ZAiKS), a collecting society. This argument was confirmed by the Supreme Court in its judgment of 7 April 2004 case 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.

The European Court of Justice in its judgment of 27 March 1974 Case C-127/73 BRT v. SABAM published in ECR 1974, p. 313, ruled that the association of authors can be deemed as an entrepreneur, because an association whose object is to exploit and manage copyrights for gain “pursues a business activity consisting in the provision of services in respect of composers, authors, and publishers”.

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“.