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Archive for: broadcasting law

Copyright law, case V CSK 373/10

August 5th, 2011, Tomasz Rychlicki

The Polish Filmmakers Association (SFP) sued a local cable television. The dispute concerned unpaid royalties, because this local TV rebroadcasted movies without a proper agreement with the Collecting Society. SFP is the only of such collection societies in Poland responsible for the management for movies and TV series. The court ordered the TV station to cease rebroadcasting, and ordered to pay compensation equivalent to triple rates of remuneration. The TV station argued that the calculation of damages was based on rates that are not market prices, since they have benn negotiated and established by the only organization on the market. The case went to the final instance.

The Supreme Court in its judgment of 15 June 2011 case file V CSK 373/10 held that a court cannot prohibit rebroadcasting of TV programs, if it was a part of the activity of a cable television, even if rebroadcasting was made without the consent of the collecting society. If the parties argue about rates for rebroadcasting, the court shall appoint a witness expert, because the rates that are used by the collecting societies for rebroadcasting are not market rates by definition, because they were adopted by one organization. Moreover, the Court ruled that the claim for payment of double of the respective remuneration as provided in Article 79(1) pt. 3 letter b of the ARNR, is a special way of protecting author’s economic rights. It has the compensatory nature, and it’s not required to demonstrate evidence of the culpability of the person who used copyrighted work without the required permit, the damage that was suffered by the rightholder and benefits that were acquired by the infringer, during the suit.

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

Broadcasting law, case II GSK 741/09

July 13th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment case file II GSK 741/09 held that the Polish Act of 29 December 1992 on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments, does not provide grounds to prohibit broadcasting at the same time, various local content in the concession decision on transmission of local bands. The opinion of The National Broadcasting Council on the prohibition of fission of broadcasts should not serve as the basis for justification of the decision.

Categories: broadcasting law | National Broadcasting Council | Polish Act on Broadcasting | Polish institutions | Polish Supreme Administrative Court.

Advertising of pharmaceuticals, case GIF-P-R-450/147-3/ZW/09/10

April 28th, 2010, Tomasz Rychlicki

The Main Pharmaceutical Inspector (MPI) questioned the legality of a few ads that were aired on different TV channels. See for instance the decision of the the Main Pharmaceutical Inspector of 4 March 2010, no. GIF-P-R-450/147-3/ZW/09/10, with regard to indication of a sponsor in “The producer of Guajazyl – cough syrup, invites to a forecast” (in Polish “Na prognozę pogody zaprasza producent Guajazylu – wykrztuśnego syropu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 10 March 2010, no. GIF-P-R-450/141-4/ZW/09/10, with regard to indication of a sponsor in “The producer of Pectosol – herbal preparation on cough, invites to a program” (in Polish: “Na program zaprasza producent Pectosolu – ziołowego preparatu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 6 January 2010, no GIF-P-R-450/126-3/ZW/09/10, with regard to indication of a sponsor in “The producer of DEXAPINI invites to a forecast. DEXAPINI – goodnight without a cough” (in Polish: “Na prognozę pogody zaprasza producent syropu DEXAPINI. DEXAPINI – dobranoc bez kaszlu”).

According to the provisions of Article 17(1) of the Polish Act of 29 December 1992 on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments, sponsored programmes or other broadcasts shall be identified as such by sponsor credits at their beginning or end. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, the image of a single product or service. According to article 4 pt. 7 of the LOB, the “sponsorship” shall mean a direct or indirect financing or co-financing of the production or transmission of a programme or other broadcasts by an entity other than the broadcaster or producer of the programme, with a view to establishing, enhancing or promoting the renown of the name, business name, product or service, trademark. The MPI held that publishing of information relating to the product, not the manufacturer’s is basically beyond the scope of sponsorship. The MPI ruled that these sponsorship spots were illegal advertising of the medicinal products.

Advertising of pharmaceuticals, case VI SA/Wa 1758/09

January 6th, 2010, Tomasz Rychlicki

The Polish court issued a first judgment regarding TV/radio sponsored programmes and advertising of pharmaceutical products. US Pharmacia Company prepared a TV spot that was aired with a TV show. The following statement appeared in the spot.

The programme is sponsored by the manufacturer of Apap Noc medicine. Apap Noc – now also available in the big package. Combats pain and helps you fall asleep.

According to the provisions of Article 17(1) of the Polish Act of 29 December 1992 on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments, sponsored programmes or other broadcasts shall be identified as such by sponsor credits at their beginning or end. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, the image of a single product or service. According to the regulations provided in Article 4 pt. 7 of the LOB, the “sponsorship” should mean a direct or indirect financing or co-financing of the production or transmission of a programme or other broadcasts by an entity other than the broadcaster or producer of the programme, with a view to establishing, enhancing or promoting the renown of the name, business name, product or service, trademark.

The Polish Act of 6 September 2001 on Pharmaceutical Law – PHL – (in Polish: ustawa prawo farmaceutyczne), published in Journal of Laws (Dziennik Ustaw) of 2008, No 45, item 271, with subsequent amendments, does not include provisions relating to sponsorship of programs or other broadcasts in radio and television. The Main Pharmaceutical Inspector (MPI) is the central organ of public administration authorized to ensure compliance with pharmaceutical regulations in the context of advertising. According to MPI many pharmaceutical companies are trying to skip the strict sponsorship rules for advertising of pharmaceutical/medicinal products. MPI has already delivered several decisions requiring pharmaceutical companies to immediately cease advertising of medicines, and only US Pharmacia appealed this decision to the Voivodeship Administrative Court. The company argued that the spot was aimed at enhancing the reputation of the medicinal product. The MPI argued that it is unacceptable to add any other indications relating to both the sponsor and the subject of its activities, in particular the goods and services. Such behaviour turns sponsorship into advertising activity.

The Voivodeship Administrative Court in its judgment of 18 December 2009 case file VI SA/Wa 1758/09 ruled that the sponsorship cannot be used as unacceptable advertisement. It has to be a form of promotion separated from advertising. The content and meaning of communication and the message broadcasted decides whether we are dealing with advertising or with corporate sponsorships. The Court also emphasized that each advertising of medicinal product has to be made in accordance with the current Regulation of the Minister of Health of 21 November 2008 on the advertising of medicinal products, published in Journal of Laws (Dziennik Ustaw) No 210 item 1327. The advertising of a medicinal product targeted to the public must contain the following essential information:

the name of the medicinal product
the INN of the active substanc, in the case of medicinal products containing more than 3 active substances, the term “complex product”
the dose of the active substance or active substance concentrations, with the exception of a complex product
pharmaceutical form of the product
indication or indications for therapeutic use
contra-indications
identification of the responsible entity

The advertising of medicinal product targeted to the public that is made in the audio-visual form additionally has to contain a warning of the following content:

Before use read the leaflet included in the package or consult with your doctor or pharmacist, as each drug that was used improperly may threaten your life or health.

This warning shall be placed in the bottom of the ad, in terms of representing not less than 20% of its surface, so as to make the text stand out from the background plane visible, legible, motionless, placed horizontally, the distance of letters from the top and bottom edge of the background plane ad cannot be bigger than 1/2 in height and the distance between the lines of the string cannot be bigger than the height of the letters. This warning must be read clearly in the Polish language and it has to appear on the screen no less than 8 seconds. The same rules regarding the warning apply to the advertising of a medicinal product targeted to the public that was prepared as a sound message.
Advertising product targeted to the public in a static visual form, shall contain a warning stating:

Before use read the label, which includes indications, contra-indications, data on adverse effects and dosage and information about the medicinal product, or consult a doctor or pharmacist, as each drug used improperly threatening your life or health.

The Warning shall be placed in the bottom of the ad, in terms of representing not less than 10% of its surface in such a way as to make the text stand out from the background plane visible, legible, motionless, placed horizontally, the distance of letters from the top and bottom edges of the background plane of the ad cannot be bigger than 1/2 in height and the distance between lines of the inscription cannot be bigger than the height of the letters. In the case of advertising to the public in a visual form which includes more than one page, a warning has to be placed on the first page.

Copyright law, case IV CSK 303/06

March 24th, 2007, Tomasz Rychlicki

The Supreme Court in its judgment of 3 January 2007 case file IV CSK 303/06 ruled that the Copyright Commision should also resolve disputes relating to the conditions of agreement between a cable operator and the collecting society on the use of copyrighted works or performances. This conditions are inter alia the method of calculation and the amount of remuneration. The Court broadly interpreted the term “dispute about the conclusion of the agreement”. The SC held that the so-called inadmissibility of the courts’ proceedings appears only if a party or both parties (a cable operator and the collecting society) will request the Copyright Commission to decide on the agreement.

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

Unfair competition, case III CZP 12/95

August 17th, 2005, Tomasz Rychlicki

The Supreme Court in its resolution of 25 February 1995 case file III CZP 12/95 held that the action of a broadcaster of TV or radio shows can be considered as the act of unfair competition if it meets the conditions laid down in article 3 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments.

Article 3
1. The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.

The Court held that imitation of a radio programme may constitute the act of unfair competition under the above mentioned general clause. Such activities, contrary to the law or good practices can be deemed as the unnamed delict/tort if other conditions are also met, i.e. there is a threat or infringement of the interest of another entrepreneur or customer.