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Archive for: Art. 108 ARNR

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 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 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“.

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 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 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.