- Can the compensation be too high?
The Polish Copyright Law provides for a number of different ways to compensate for losses incurred as a result of an infringement of economic rights. From the beginning, the most controversial was the possibility of claiming the amount twice or even three times more (in case of culpable infringement) than the remuneration for the consent to the exploitation of the rights.
The indicated provision created a risk that the aggrieved party would become enriched beyond measure. It was also said that this provision was simply too harsh for the infringer.
The discussions seemingly ended judgment of the Constitutional Court of Poland – in 2015 the Constitutional Court of Poland stated that the indicated provision was inconsistent with the Polish Constitution as regards the possibility for the author to claim three times the relevant remuneration as compensation.
After that, in a new reality, it was no longer possible to claim three times the remuneration, but the problem remained. Currently, compensation may still be claimed, but only up to twice the remuneration of the legal use of the copyrighted work.
2.What does reasonable really mean?
So, if the provision is valid according to the Constitutional Court of Poland, it should be applied. To do that in a proper way, first we (or the Court) need to answer the question of what reasonable remuneration means.
Fortunately, this question was answered by the Polish Supreme Court (judgement of 29 November 2006, case: II CSK 245/06). The reasonable remuneration means the amount which the owner of the copyright would receive if the person who violated his rights concluded the agreement with him for the use of the work within the scope of the infringement.
More simply, it can be said that this is bringing the situation back to what it should be from the beginning.
But at the same time, it is still possible to double this remuneration.
3.Practice at the end – what does the Court say?
Calculating compensation is an extremely important matter in practice. Copyright infringements are very common and just as often the copyright owners demand compensation.
Recently, the Court of Appeal in Warsaw ruled in favor of the copyright owner about violation of rights, but awarded compensation three times lower than requested in the lawsuit (judgement of 29 July 2020, case I ACa 693/19).
The case concerned the graphics of hussars used by some Polish political party on its website. The rights to the graphic belonged to the plaintiff who immediately – after noticing the infringement - called for the graphic to be removed from the website. The political party actually removed the picture. The entire incident lasted about a month.
The plaintiff demanded PLN 16,000. She cited evidence in the form of license agreements and agreements transferring the rights to the similar work as the subject graphic, for the amounts from PLN 5,000 to PLN 8,000. Of course, using its rights, she demanded double the amount of remuneration – PLN 16,000.
The Court not only took into account the lowest possible amount (PLN 5,000), but also did not double it. It follows from the above that compensation can be mitigate. Such a possibility is also indicated by the Court of Justice of the European Union (judgement of 25 January 2017, case C-367/15). The only minimum limit of the mitigation: the reasonable remuneration.
In the discussed case the Court took into account i.a.: the short time of the infringement (just a month) and the fact that the graphic was immediately removed from the website upon receipt of the request. Moreover, the public who could see the graphic was very limited - in fact, only to those who actively followed the political party's website. The amount of compensation was also influenced by the non-profit nature of the activities of the political party.
It can be said that the amount of compensation, in this case, was influenced by many conditions and it is really difficult to deny the rightness of the Court unless we are a plaintiff.
However, when analyzing this case, it is worth remembering that the Constitutional Court of Poland ruled that compensation of three times the remuneration is inconsistent with the Constitution. The judgement did not concern the possibility of claiming double remuneration.
Perhaps this issue should be reconsidered?