The Polish Act of 4 February 1994 on Copyright and Neighbouring Rights (“Polish Copyright Act”) has been reformed in two separate amendments. The main objective of the first, so-called Small Amendment dated 15 May 2015, was to implement Directive 2011/77 EU on the term of protection of copyright and certain related rights, which should have been done by 1 November 2013. The Small Amendment came into force 1 August 2015. We set out below its most crucial highlights.
The second, so-called Big Amendment will also be described in Law-Now, as soon as it becomes binding law.
New rules for musical compositions with words
The European legislators noticed discrepancies between the laws of Member States regarding musical compositions with words, such as operas or songs in which the creative process is collaborative. For instance, in Poland, before the Small Amendment came into force, separate terms of protection applied to music and lyrics, unless the work could be deemed a work of joint authorship in the meaning of the Polish Copyright Act. As a result, copyright protection for the text often expired at a different time to the copyright for the music. Following the Small Amendment, and provided that the lyrics and music were created in order to be used together, all the authors of such works (e.g. lyricist and composer) are now protected for an equal period of time, i.e. 70 years calculated from the death of the last surviving author and irrespectively of whether the work constitutes a work of joint authorship.
Longer duration for phonographic artistic performances
Under the Polish Copyright Act, the terms of protection for artistic performers were never as generous as for authors. The Small Amendment corrects this imbalance and extends the protection of phonographic artistic performances from 50 to 70 years. Since performers generally start their careers young, the protection provided by the Polish Copyright Act did not protect them throughout their lifetime. As a result, some artists felt a decline in revenues in the later years of their lives. Thanks to the new harmonised regulation, protection of performers’ rights (neighbouring rights) is improved and will continue for 70 years after the publication or communication of phonographic recordings to the public. The extension was limited to phonographic performances, which usually refers to musical performers. The same solution for audiovisual performers will be considered shortly.
The Small Amendment also implements other legal remedies encompassed by Directive 2011/77 aimed at safeguarding artistic performers.
“Use it or lose it”
If, 50 years after a phonographic performance was lawfully published or otherwise made available to the public, the producer does not offer copies for sale in sufficient quantity, the rights to the fixation of the performance should revert to the performer, and as such the performer may terminate the contract under which he transferred or assigned his rights to the fixation of his performance to a phonographic producer. The right to terminate the contract may be exercised if the producer, within a year of the performer’s notification of his intention to terminate the contract, fails to exploit the phonographic performance in the manner indicated by the Polish Copyright Act.
New remuneration rules for artistic performers
A performer will have the right to obtain an annual supplementary remuneration from a phonographic producer for each full year immediately following the 50th year after the phonographic performance was lawfully published, if the contract on transfer or assignment gives the performer a right to claim a non-recurring remuneration.
The Small Amendment puts into order some very crucial aspects of copyright law. Since musical compositions with words are overwhelmingly co-written works, it was necessary to determine the exact duration of protection for all authors. Furthermore, the extension of the protection for recorded artistic performances will ensure life-long revenues derived from performers’ exclusive rights. On the other hand, it is difficult to assess how the courts will interpret a “sufficient quantity” of copies of a phonographic performance in relation to the “use it or lose it” principle, since the guidelines provided by the Polish Copyright Act are too general and vague.