In October 2010, the amendment to the Polish Copyright and Related Rights Act (CRRA) entered into force. The amendment was triggered by a judgment of the Constitutional Tribunal, which had ruled that article 108 para 3 of the CRRA was contrary to the Constitution, and repealed it.

That provision stated that the Copyright Board (Board) appointed by the Ministry of Culture and National Heritage had a right to approve or reject tables of remuneration for use of works or artistic performance covered by collective management (table) and presented by collective management organisations.

The Tribunal held that the provision did not guarantee the copyright users’ participation in the table approval procedure, although they were interested in remuneration rates. The repeal of this regulation resulted in a loophole in table approval procedure, which the amendment aimed to plug.

Remuneration

Tables indicate remuneration to be paid by copyright users for use of certain works within a specified exploitation field. The remuneration is paid to authors of such works through the collective management organisations. Thus, tables are of enormous significance to the income from copyrights and to costs of using the works, such as for broadcasting business purposes.

The amendment retained the Board as a body competent for table approval, modifying, however, its composition and appointment rules. In its current form, some candidates for arbitrators are nominated by copyright users.

Table approval procedure

According to the new regulations, the table approval procedure is initiated upon an application for table approval made by collective management organisations. Copyright users active in exploitation fields referred to in tables covered by the application may, within a period indicated by the CRRA, file an application to join the procedure.

The Board approves or rejects the tables in whole or in part. In the latter case, the Board proposes changes to the tables in writing. In each case, dissatisfied participant may, within 14 days of the receipt of the decision, submit an application for approval or rejection of the tables by a specially designated court, the Regional Court in Poznań, which decides whether to approve or reject the tables. If the tables are approved, its rates are used in agreements concluded by collective management organisations and copyright users.

The new criteria to be applied by the Board and court when examining the case (ie, income of the collective management organisation from royalties) general charges users for licence fees and justified public interest.

Support trade in copyright

The legislator intended not only to fill the legal gap by creating a table approval system but also to stimulate the trade in copyright, which had been impeded by court disputes on remuneration related to such trade.

Despite ensuring the copyright users a possibility to participate in the table approval procedure, no regulations obligate them to reach a compromise with collective management organisations over the tables. This may result in failure to approve the tables and maintenance of the status quo, meaning no table setting clear positions of the interested parties and ensuring safe trading. This could have been solved by a mandatory mediation provision.

Solutions

The uncertainty as to table approval could be reduced by granting the Board and court a right to interfere with the tables by guaranteeing them, apart from the right to approve or reject the table, the right to amend it. By modifying the tables, the Board or court would, at their discretion, form the tables (which in practice would amount to approval of it as amended) and through this, prevent the table approval procedure from ending without a resolution.

A further approach would be to get rid of the Board and tables and appoint one common court to hear collective management-related cases. This solution seems reasonable, if approval of tables by the Board does not prevent disputes arising from their use (eg, a collective management organisation seeking remuneration based on the table rate for using work by copyright users), which are heard by common courts anyway.

Appointing one court to resolve all collective management disputes on remuneration rates for use of works would mean that one team of judges would become specialised in this area. Cases would be resolved promptly and trading in copyright would become more effective.

The legislator intended not only to fill the legal gap by creating a table approval system but also to stimulate the trade in copyright, which had been impeded by court disputes on remuneration related to such trade.