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Archive for: collecting society

Copyright law, case I CSK 617/12

July 5th, 2013, Tomasz Rychlicki

The Polish Collecting Society ZAiKS sued the publisher Bauer and demanded the disclosure of data on sale and number of issues of magazines such as “Twój Styl”, “Tina”, “Claudia” and “Świat Kobiety” which have attached DVDs with different movies. ZAiKS wanted to use this information to determine the amount of royalties that would be eligible for filmmakers (writers and performers of music, screenwriters, etc.) from the sale of movies, attached by the publisher to all those magazines. Bauer refused, saying that ZAiKS has not shown that it actually represents the artists involved in the production of various movies. Among the films inserted in magazines published by Bauer were both Polish and foreign titles. ZAiKS, despite the failure to provide proper agency agreements with specific authors or foreign collecting societies, said, that it has the right to request such information based on the provisions of Article 105 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collection societys claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

However, the courts did not agree with ZAiKS and dismissed the lawsuit. ZAiKS filed a cassation complaint. The Supreme Court in its judgment of 27 June 2013 case file I CSK 617/12 held that the case should be re-examined. The Court noted that the lower courts confused the order of proceedings. Information claims should be decided in the first place, for instance, as an interlocutory judgment. In order to challenge the legitimacy of a compensation claim, it must be shown that the other collecting society claims the protection of copyrighted works. It wasn’t enough only indicate that there is another organization working in the sector of ZAiKS’s representation. This principle also extends to the work of foreign artists.

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

Copyright law, case I ACa 134/13

June 25th, 2013, Tomasz Rychlicki

ZAiKS, the Polish Collecting Society, sued an organizer of New Year’s Eve party for copyright infringement, and demanded 3177 PLN compensation – a triple of the amount corresponding to the remuneration calculated by the Society for public performance of works of authors who are associated with ZAiKS. The Society provided an advertisement of the party, an official memo of the police on parties and events that took place in this period of time, and a memo of the inspector who works for ZAIKS of a conversation with the organizer of the ball, as evidence. The District Court in Siedlce and the Appeallate Court in Lublin in its judgment case file I ACa 134/13 dismissed the case. The Court ruled that information about the event itself is not enough to claim damages for copyright infringement.

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

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Copyright law, case I ACa 129/12

December 21st, 2012, Tomasz Rychlicki

The Polish Collecting Society representing authors and composers sued an owner of a road restaurant that for nearly five years he played without a proper license agreement music from the television ads that were aired in news channels. The defendant claimed that he only uses the television as any citizen who pays subscription. The District Court in Częstochowa in its judgment of 27 October 2011 case file I C 179/11 decided that that playing music in a restaurant room for an unlimited number of people is deemed as communication to the public under the copyright law.

The Appeallate Court in Katowice in its judgment of 13 April 2012 case file I ACa 129/12 found that the TV set at the restaurant aired mostly news programs and almost all TV programs are interrupted by advertising breaks in which background music is often broadcasted. It was obvious for the Court that the author was properly remunerated for the use of his work in advertising. However, in this case the court bent over considering that the author of the text or the music should have additional consideration for the publication of his work in the advertising. The Court concluded that, although the TV broadcast of interesting programs can affect customers and lead to the financial gain, however, viewing ads is not something attractive for them. As it was further noted, when it comes to public perception of advertising, one may even venture to say that they are pesky and daunting thing to watch the program. The Court held that broadcasting music that was aired in TV ads, does not lead to obtaining material benefits by the owner of the restaurant, thus charging penalty only on such grounds had to be considered as ineligible.

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

Personal interests, case I ACa 689/13

August 1st, 2012, Tomasz Rychlicki

FS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).

The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS. File Solutions filed an appeal.

The Appeallate Court in Warsaw in its judgment of 10 October 2013 case file I ACa 689/13 returned the case to the District Court.

Copyright law, case III CSK 30/11

March 14th, 2012, Tomasz Rychlicki

Helena Miazek is a well known Polish folk artist and creator of paper cuts that are based on the long tradition of Łowicz region. Wawel S.A. is a Polish manufacturer of sweets. The company used different graphics with folk elements on its products. Helena Miazek and Stowarzyszenie Twórców Ludowych in Lublin (The Folk Artists Association – a collecting society) sued Wawel for copyright infringement. The suit included a claim in which the Association demanded Wawel to provide information concerning the use of paper cuts on packaging products. Wawel argued that it has commissioned other artists to create these graphics. The District and the Appeallate Court dismissed the suit as unfounded. Both courts deemed the society as the entrepreneur which was obliged to prove that a particular copyrighted work was used without permission of the owner. The Association and Helena Miazek filed a cassation complaint.

The Supreme Court in its judgment of 17 October 2011 case file III CSK 30/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court had to decide on the nature of information claim afforded in Article 105(2) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collection societys claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

Earlier Supreme Court case law is not too rich when it comes to this issue. The Supreme Court in its judgment of 8 December 2000 case file I CKN 971/98 published in OSNC 2001/6/97, pointed out that the provision included in Article 105(2) of the ARNR is a legal norm of substantive law, and the right of collecting societies to protect authors rights and neighbouring rights, exempts it from the obligation to provide the authority to represent, both in the trial for payment, or in any trial for disclosure of information and documents. The Supreme Court in its order of 17 September 2009 case file III CZP 57/09 held that the proceedings for disclosure of information and documentation is a new legal tool. The Court ruled that in the doctrine of civil law, it is reasonably assumed that if the right is strictly defined and concretized in terms of its content and subject, and when this right is merged with the obligation of another entity, then such a legal norm is substantive in its nature and in case of evasion by the bounded entity from the performance of an obligation imposed on it, the right takes the form of a claim which may be enforced through the courts. For instance, the claim to disclosure of information has the auxiliary nature under the contractual relationship between the collecting society and the producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus who are obliged to pay remuneration fees, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms. These creators and performers are represented in such cases only by the collection society. Such informational claim, which addressed to the same bounded entities, was created to ensure the proper execution of the basic right to equitable remuneration. Information and documents obtained during the trail are the basis for determining the amount of the fees enjoyed by collecting society, regardless of whether the society intends to pursue these fees in court. The Supreme Court in the case of Helena Miazek and and Stowarzyszenie Twórców Ludowych in Lublin decided that the informational claim also applies to information concerning the use of certain works by a third party.

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

Unfair commercial practices, case VI ACa 1179/11

February 20th, 2012, Tomasz Rychlicki

The President of the Office of Competition and Consumer Protection in its decision of 29 August 2008 case DOK – 6/2008 ruled that two Polish collecting societies, the Association of Writers and Composers (Stowarzyszenie Autorów – ZAiKS) and the Polish Filmmakers Association (Stowarzyszenie Filmowców Polskich – SFP), were involved in actions deemed as infringement of competition on the relevant market. This decision concerned the agreement on uniform rates of copyright remuneration that were collected from commercial users for the sale of audiovisual works on media intended for private use. The request to initiate antimonopoly proceedings was filed by the Polish Press Publishers Association (Izba Wydawców Prasy – IWP) based on the provisions of 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.

IWP claimed that ZAiKS and SFP are competing entities because they are active on management and collecting in the same fields of exploitation of copyrighted works, and authors, creators and copyright owners can freely choose the collecting society they want to be represented by.

The President of the OCCP found that ZAiKS and SFP decided that the minimum remuneration rates for one copy of the media will be for a movie on DVD – 2 PLN, for a movie on VCD and VHS- 1,1 PLN, for a cartoon movie on DVD – 1.6 PLN, and for a cartoon movie on VCDs and VHS – 0,8 PLN. Minimum rates for a copy of audiovisual work on the media that are sold together with other products, including, in particular newspapers and magazines were set on an even lower level. For instance for a DVD that was put on the market before 1 July 2004 – 1 PLN, and from 1 July 2004, 0.60 PLN, There were also introduced discounts from 5% to 40% depending on the number of copies (from 100.000 to above 700.000 copies).

Members of IWP, who are press publishers, are also contractors of ZAiKS and SFP. The Press publishers add copies of DVD movies to their newspapers and magazines, as the so-called inserts. They are required under the provisions of Polish copyright law to pay appropriate remuneration for the reproduction of the audiovisual work on the copy for individual use. The remuneration fee is paid by the press publishers only through the collecting society. IWP argued that the remuneration of the authors for use of audiovisual works should be individualized, and the conditions of agreement to use the work should be negotiated. The collecting societies should negotiate different rates for different movies. Such actions would prove the real concern for the interests of every member of each collecting society, because the authors of a better movie should earn more. The rates covered by the agreement between ZAiKS and SFP did not include possible revenues from the use of audiovisual works, nor the specifics of this use. Thus, according to the IWP, the agreement of ZAiKS and SFP on the application of uniform rates, deprived commercial users the possibility to negotiatie the rates, and significantly restricted competition.

ZAikS and SFP filed complaints against the decision of the President of the OCCP. The Polish Court of Competition and Consumer Protection in its judgment of 8 July 2011 case file XVII AmA 23/09 dismissed them. The Appeallate Court in Warsaw in its judgment case file VI ACa 1179/11 dismissed the appeal.

Copyright law, case III CZP 61/11

November 19th, 2011, Tomasz Rychlicki

The Polish Supreme Court in its order of 26 October 2011 case file III CZP 61/11 held that manufacturers and importers of photocopiers, scanners and other similar reprographic equipment, that allow for the production of copies of the whole or part of the published copyrighted work, are obliged to provide to the competent organization for collective copyright management (collecting society), information and documents, that relate to all contracts for the sale of these devices.

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

Copyright law, case P 18/09

October 14th, 2011, Tomasz Rychlicki

The Constitutional Tribunal of the Republic of Poland in its judgment of 11 October 2011 case file P 18/09 held that Collecting Societies acting on behalf of authors, performers, producers of phonograms and videograms and publishers, may demand from manufacturers of copiers and recorders all information and documents necessary for calculation of the amount of fees levied on them. The producers and importers of tape recorders, video recorders and other similar apparatus are obliged to pay these fees according to Article 20(1) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.
ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The Association of Copyright Collective Administration for Authors of Scientific and Technical Works requested one of the Polish companies to provide information about copiers imported and sold in Poland. Every Collecting Society has the right to request such information based on the provisions of Article 105 of the ARNR.

Art. 105.
1. The collecting society shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collective administration organizations claim competence in respect of one and the same work or performance.
2. In the course of its activity the collecting society may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

This request created legal uncertainty and the case ended before the courts. The Appellate Court in Wrocław had doubts whether such request violates trade secrets of a company, and there are any guarantees to protect against fraud. The Court noted that the protection of trade secrets is guaranteed by the freedom of economic activity. That freedom may be restricted only for reasons of important public interest. Meanwhile, the interest of collecting societies is not the public interest, but the sum of the partial interests of private authors, creators and publishers.

The Constitutional Tribunal ruled that fees charged by Collecting Societies are collected in order to protect the rights of creators, performers, producers of phonograms and videograms and publishers. This means that the restriction of freedom of economic activity was in accordance to the condition expressed in Article 31(3) of the Polish Constitution.

Article 31
Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

The Constitutional Tribunal held that in order to protect the rights of others, the legislature intervenes in the economic relations, that are based on the model of market economy in a democratic state, whose pillars are freedom of economic activity and private property. The Constitutional Tribunal held that Article 105(2) of the ARNR limits the freedom of economic activity, but it does not affect the principle of proportionality. The limitation of the freedom of economic activity serves to protect the interests and constitutional values such as the rights of creators, social conditions and economic foundations of a market economy. The limitations of economic activity are necessary to protect these values, and to avoid state interference in the sphere of access to modern reprographic equipment.

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

Tax law, case I FSK 1215/10

September 24th, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 9 September 2011 case file I FSK 1215/10 ruled that activities of the Polish Artists’ Association, a collecting society which is responsible for collective management of artists’ and performers’ rights that is based on signing of licensing agreements with copyright users and collecting and distribution of royalties, is deemed as a service within the meaning of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535 with subsequent amendments, and such services are not subject to tax exemptions, because the association charges a fee from these activities, and it is not funded by membership fees.

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“.

Copyright law, case III CZP 1/10

July 24th, 2010, Tomasz Rychlicki

The Supreme Court in its order of 13 July 2010 case file III CZP 1/10 held that operators of cable networks may initiate court’s proceedings with regard agreements on remuneration scales/tables concluded or to be concluded with the competent organization for collective management of copyright, that concerns rebroadcasting of copyrighted works on radio and television programs, only after the exhaustion of the proceedings before the Copyright Commission. The issue of the inadmissibility of the courts’ proceedings was very unclear lately bacuse there was divergent case law of the Supreme Court and legal comentators presented different opinions and views. See “Copyright law, case IV CSK 303/06” and “Copyright law, case III CZP 107/07“.

The Copyright Commission, with a composition of three persons, two of them designated by the parties from among the arbitrators and the third co-opted as referee by the other two, shall settle disputes concerning the application of the scales referred to in article 21¹ of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631.

Art. 21¹
1. Cable network operators may rebroadcast on cable, works that are broadcasted on radio and television organization solely on the basis of an agreement with the competent organization for collective management of copyright.

2. In case of any disputes regarding the conclusion of the agreement referred to in paragraph 1, the provisions of article 108(5) shall apply.

If one of the parties does not designate an arbitrator or if the arbitrators do not designate a referee, the arbitrator or referee in question shall be designated by the Ministry of Culture and National Heritage. The party that is not satisfied with the decision of the Copyright Commission may, within a period of 14 days of the notification of the said decision, bring a judicial action before the competent district court.

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

Copyright law, case V CSK 22/08

November 16th, 2009, Tomasz Rychlicki

The Society of Authors and Publishers Polish Book from Kraków (in Polish: Stowarzyszenie Autorów i Wydawców Polska Książka w Krakowie) is one of the Polish collecting societies. The Society sued Euroimpex company which is a distributor of reprographic equipment, mainly photocopiers and scanners. The suit was based on Article 20(1)(ii) of of Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.
ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The District Court in Kraków ordered Euroimpex to pay the reprographic fee in the amount of 124,678 PLN. Euroimpex filed an appeal in which it argued that the provisions of ARNR are unconstitutional. However, the Appellate Court in Kraków shared the opinion issued by the District Court and ruled that there is a lack of grounds to question the compliance of article 20(1)(ii) and article 105(2) of the ARNR with the constitutional norms.

Article 105
1. The collective administration organization shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collective administration organizations claim competence in respect of one and the same work or performance.
2. In the course of its activity the collective administration organization may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

A similar view was also expressed in relation to provisions of the Regulation of the Minister of Culture of 2 June 2003 on designation of categories of devices and media used for recording of productions and payments levied on sales of these devices and carriers carried out by producers and importers, Journal of Laws (Dziennik Ustaw) No. 105, item 991. Euroimpex filed a cassation complaint.

The Supreme Court in a judgment of 19 June 2008, case file V CSK 22/08, ruled that according to the settled case law, any court, in principle, has the same power to assess whether the provisions of regulation that may be applicable in a given case are not inconsistent with the Constitution. Additionally, the SC ruled that the provisions related to the remuneration fees are justified and their introduction was an expression of global trends in intellectual property law that was also made in order to compensate authors and publishers for what they lose by copying or reproduction of works made by third persons for the personal use. These are the civil law claims, which the collecting societies have the right to collect and which they are allowed to claim before the court. As these fees are divided, is no longer a matter to be decided by the Court, but it is the inner matter of organization and artists who are members of this organization.

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

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“.

Copyright law, case III CZP 107/07

January 24th, 2008, Tomasz Rychlicki

The Supreme Court in its order of 6 December 2007 case file III CZP 107/07 held that a party who is not satisfied with the decision of the Copyright Commission, may bring a judicial action before the competent district court, within a period of 14 days of the notification of the said decision, only after the conclusion of the proceedings before the Copyright Commission. It is known as the so-called inadmissibility of the courts’ proceedings.

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

Categories: Art. 108 ARNR | collecting society | Copyright Commission | Polish Supreme Court | remuneration fee.

Copyright case, IV NSA 2238/01

March 29th, 2007, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 25 April 2002, case file IV NSA 2238/01, published in MoP 2002, No. 12, p. 532, has denided the Board of the Society of the Polish Architects the right of action in a case of the infringement on the integrity of the architectural design/project.

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

Categories: Art. 78 ARNR | collecting society | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Administrative Court.

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“.

Copyright law, case I CK 312/02

March 17th, 2007, Tomasz Rychlicki

The Supreme Court in a judgment of 3 December 2003, case file I CK 312/02, has denided the right of action to a collecting society that wanted to initiate a copyright suit in the name of a living person. The Court held that the collective management does not include protection and management of moral and personal rights of living persons, creators or authors. In this case, the Polish Society of Authors and Composers (ZAIKS) wanted to bring an action for the protection of personal rights of a living author who composed music/soundtrack for the movie.

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

Copyright law, case SK 40/04

February 21st, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its jugment of 24 January 2006 case file SK 40/04 held the collective management organization cannot act and function in the absence of remuneration scales/tables. It would not be able to properly exercise the collective management of copyright and the principle of equal treatment, without the enactment of the tables. In this sense, the adoption of the remuneration tables is a necessity for the collective management organization. The tables/scores have bonding effect on such a collecting society, which approved them, by virtue of the act under which they were issued. In the external contractual relations, and under pending approval by the Copyright Commission, that tables are deemed as an offer. The tables bond collecting societies and licensees only if they have been approved by the Copyright Commission. For this reason, the establishement of the remuneration tables must take into account all the economic and operational issues in order to avoid arbitrariness in constructing their levels, and scope.

Copyright law, case P 10/03

January 17th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 21 November 2005 case file P 10/03 held that the approval or denial of approval of the remuneration scales (remuneration tables/fees) for the exploitation of collectively managed works or artistic performances, by the Copyright Commission, is a decision within the meaning of the Code of Administrative Proceedings. This decision is a individual decision, addressed to a particular entity, i.e., in the case of a particular organization for collective management of copyright, which submitted the remuneration scales for approval. The Tribunal ruled that even such a decision is addressed to an individual, the remuneration scales (tables) contain general and abstract norms that may be applied to contracts that are conducted between a collecting society and a party interested in being a licensee of managed works.

Copyright law, case I ACr 1191/95

February 26th, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in the order of 12 December 1995 r. case file I ACr 1191/95 held that the criterion of profitability (activities aimed at profit) is not inherent feature of business/economic activity. Such activity is distinguished because of its professional nature, the associated repetition of actions, subject to the principles of rational management and participation in trade.

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