INALIENABLE REMUNERATION (AUDIOVISUAL ROYALTIES) FOR THE PUBLIC BROADCASTING OF AUDIOVISUAL WORK - PRESENTATION AT WARSAW UNIVERSITY

30 April 2018

On 11 April 2018 at Warsaw University, I gave a lecture on inalienable remuneration (audiovisual royalties) for public broadcasting of audiovisual work, during a doctoral seminar chaired by Professor Monika Czajkowska-Dąbrowska.

I pointed out that the inalienable rights to royalties had recently become popular in the European Union, especially in connection with the copyright reform undertaken by the European Commission in 2015. I concluded that audiovisual royalties may, in the near future, become a remedy of a sorts for attempts at limiting the principle of territoriality of copyrights (and thus royalties) by such mechanisms as service transferability and the ban on geoblocking of content, or reinforcing the principle of the country of origin and “purchase” of copyright at the so-called source, single broadcasting act.

In my lecture, I discussed the statistics of the charging of royalties in Poland for 2016, a wide range of views on the doctrine describing the nature of the right to royalties. This particularly concerned the legal qualification of royalty from the point of view of effectiveness of law. I demonstrated that this division divided the Polish doctrine into the supporters of a relative or absolute nature of the right to royalties or proponents of a so-called third option. The latter are looking for an intermediate solution between the relative and the absolute right, sometimes referring to the right in question as “semi-absolute” or a “relative one with extended effectiveness”.

I concluded that in the case of the fee being discussed, it is more an independent right, a relative right to remuneration, which in principle may not be determined by an organization of collective management of copyrights and neighbouring rights (“CMO”) by itself except where it has used an approved royalty rates table. I decided that it is how the right is exercised which may be the criterion determining the right: via a CMO, given that a benefit has arisen from the use of audiovisual work and conformity of such use with the absolute economic copyright, without the option to alienate, enforce or relinquish the right by the holder, except for due and payable claims.  I resolved that it might be a question of a legal standard modifying contractual relations for the benefit of co-authors of audiovisual work or performing artists. In this regard, in my opinion, one might be dealing with an extended effect of the royalty right. A similar standard is one introducing the semi-imperative power of approved royalty rate tables.

I also concluded that the CMOs may not seek payment of royalties for all the right holders of a given category on planet Earth in isolation from the scope of entrusting of the rights in collective management. For CMOs act as an indirect representative in this case rather than a statutory representative of “all right-holders”. However, the breaking of the rule of entrusting the rights concerning the collection of royalties may result from a clear legal basis or a situation of extended collective management, and in Polish circumstances only from an authoritative decision of the Copyright Commission (“CC”) nominating the competent organization. I also mentioned certain “dams” which might prevent a massive outflow of royalties from Poland without an equivalent, on the basis of Polish law. In my opinion, they include a warranty given by the CMO to the Ministry, than given back in the decision for CMO giving permission for the collective management of rights, the status of a competent organization and the basis of representation.

I also pointed out to the persisting problem of the so-called old royalty rate tables approved by the CC at the turn of the centuries on the basis of provisions of the Copyright Act which were later rescinded. In practice, Poland has not effectively approved any new tables specifying the royalty rates so far. Therefore, I am not surprised by postulates trying to extend in time the legal effects (semi-imperative power) of the so-called old tables. Anyway, such an option has been left by the Polish legislator, which has been imprecise in this regard. I stated in this context that  three interpretations were possible concerning the persistence of the so-called old royalty rate tables after the Constitutional Tribunal handed down a ruling on 24 January 2006 and in connection with the entry into force of the Act of 8 July 2010 on amendments to the Copyright and Neighbouring Rights Act. For one might claim that the so-called semi-imperative power of such tables was confirmed under said Act proactively, i.e. ex nunc, that it was confirmed by the Act retroactively,  ex tunc, i.e. from the moment of rescission by the Constitutional Tribunal of Article 108(3) in connection with Article 109 of the Copyright and Neighbouring Rights Act or that the power never ceased in spite of the Constitutional Tribunal’s ruling. I declared myself in favour of the first possible interpretation.

Graphics: Source: https://socialpress.pl/2014/03/organizujesz-konkursy-w-internecie-zobacz-jak-legalnie-nabyc-prawa-autorskie-do-zglosznych-prac/

Presentation: http://www.prawoautorskie.pl/download,YXJ0aWNsZXNfZmlsZXMjYToxOntzOjE1OiJhcnRpY2xlX3BhZ2VfaWQiO3M6MjoiODAiO30jMg==.html

Author: Janusz Piotr Kolczyński, Attorney-at-law