Tables of remuneration for authors should be revised

27.01.2017
An amendment to Act on Copyright and Related Rights (Journal of Laws of 2016, item 666, as amended), passed a few years ago, has introduced a procedure for approving remuneration tables before the Copyright Commission (hereinafter: “CC”, “Tables”). Tables are of semi-imperative character and they interfere with a contractual relationship which means that terms or provisions, stipulating less favourable remuneration for authors than that resulting from the approved Tables, are invalid and shall be replaced by the applicable provisions of Tables.

Today it has become evident that the procedure for approving Tables didn’t produce the desired results.

“The aim of table proceedings was to lead to the market stabilization, that is a situation when both authors and persons making use of their works are able to reach an agreement as to the rates before the Copyright Commission in quasi-mediation proceedings – as the judicature calls it. However, it has quickly turned out that the whole system of approving tables is faulty. First of all, the proceedings before CC was shortened to 6 months and at the same time CC was deprived of its discretionary power to lengthen the proceedings at its own discretion. Furthermore, the Committee itself was not prepared, in organizational terms, to handle the cases efficiently – on the contrary, it acted slowly and ineffectively. Actually, all cases were discontinued by reason of the expiry of the time limit. On the contrary, for the lawsuits which followed them as a result of appeals, no time limits were provided and those proceedings were continued aimlessly for years. Aimlessly, because at the same time the parties to the proceedings were deprived of a possibility of gradual reaching a compromise. The practice took such a direction which didn’t allow the applicants to make any amendments to the table contents. The Regional Court in Poznań decided – which may be discussed – that its scope of consideration had been limited only to the role of a quasi-notary who approves or disapproves the table in the same form as in the proceedings before CC. The court treated any amendments, e.g. to the rate, introduced in the court proceedings as premature and – due to interim lack of litigation – referred them back to CC, rejecting the applications. Applications and Tables of such major organizations, associating authors, artists, composers, performers, etc., as: ZAiKS (Polish Society of Authors and Composers), SFP, STOART, SAWP, ZASP, ZPAV in the following fields of exploitation: broadcasting, re-emission, reproduction, displaying, etc. were rejected”, Janusz Piotr Kolczyński, Managing Partner in C.R.O.P.A. the TMT, IP & Sports Law Firm, a long-term attorney for litigation of one of the participants to the table proceedings, explains.

In the article published in “Dziennik Gazeta Prawna” on the 6th December 2016 under the title “Price for music. Return to starting point after six years”, Mr Kolczyński was also asked about the current legal status. The question arose in relation to one of the recent orders issued by the Regional Court in Poznań which was conducting the proceedings for establishing the Table of Authors Association ZAiKS, i.a. with respect to broadcasting of works by television broadcasters. The amount of rates proposed by CC was challenged i.a. by broadcasters. When the discontinued case had been referred to the court, ZAiKS reduced the proposed rates. The reduction was one of the reasons for referring the case back to CC by the court, which justified the decision on the grounds that litigation was temporarily inadmissible. As it follows from the statement of reasons for the order as of the 6th April 2016 (I Ns 75/12/10):

The court (...) is not entitled to shape new contents of the table by means of its ruling, in particular to modify individual provisions of the table in a ruling which closes the proceedings in a given case.

In practice, as Mr Kolczyński summarized, “After six years we are still in the starting point. Everything returns to the beginning, that is to negotiating system of determining remunerations for authors. Clearly, organizations with collective management are unwilling to accept it and they try to impose their private price lists on the users, in the name of allegedly equal treatment”.

However, there are good chances that something will change soon. According to Sławomir Wikariak, a journalist of “Dziennik Gazeta Prawna”, the Ministry of Culture and National Heritage is supposedly working on amendments to the provisions related to collective management system in Poland. It is probable that the procedure for approving Tables will be amended as well.

Source: Dziennik Gazeta Prawna, 6th December 2016, no. 235 (4382) and PrawoAutorskie.pl