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Archive for: Art. 104 ARNR

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The Supreme Court in its judgment of 17 October 2011 case file III CSK 30/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration.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 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 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 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“.