Poland

[PL] Additional Remuneration for the Use of Audiovisual Works

IRIS 2007-8:1/28

Małgorzata Pęk

National Broadcasting Council of Poland

On 6 July 2007 the Sejm - the lower chamber of the Parliament - adopted an amendment to the Ustawa z dnia 6 lipca 2007 r. o zmianie ustawy o prawie autorskim i prawach pokrewnych (Act on Copyright and Related Rights). The new Actwas then sent to the Senate - the upper chamber of the Parliament - that proposed on 26 July certain amendments that are to be examined by the appropriate Sejm’s commission.

This small amendment to the Act on Copyright and Related Rights is aimed at achieving conformity to the Constitution - the Constitutional Tribunal had stated on 24 May 2006 that Art. 70, para. 2 of the Act on Copyright and Related Rights was not in conformity to the Constitution - providing for additional remuneration for the use of audiovisual works granted to its creators and performers.

The Amendment reflects the Constitutional Tribunal judgement and provides for a general approach regarding co-creators entitled to additional remuneration. Previously, the wording granted this right only to a certain, closed group of co-creators, not taking into account a broader understanding of co-creators under Art. 69 of the Copyright and Related Rights Act.

The major change of Art. 70, para. 2 is that the provision uses only the general term “co-creators” instead of naming different kinds of co-creators entitled to additional remuneration. The new wording does not limit the scope of entitled co-creators to specific categories. The scope of fields of exploitation for which the users of audiovisual works are obliged to pay additional remuneration - through the organisation for collective administration of copyright or neighbouring rights - remains the same.

The new wording provides that co-creators of the audiovisual work and performers are entitled to:

- a remuneration proportional to the revenues obtained from the screening of the audiovisual work in cinemas;

- an appropriate remuneration for the rental of copies of audiovisual works and public playing thereof;

- an appropriate remuneration for the broadcasting of the work in television or other mass media;

- an appropriate remuneration for the reproduction of the audiovisual work on a copy intended for own personal use.

The notion “co-creators” is defined in Art. 69. It specifies that co-authors of an audiovisual work are persons who have made a creative contribution to its establishment. This includes in particular: the director, the cameraman, the author of the adaptation of a literary work, the author of musical or textual and musical works created for the audiovisual work and the author of the screenplay. This definition has a flexible formula and the presented list of co-creators is not exhaustive.

In the light of the new wording of Art. 70, para. 2, other persons, aside from those expressly named in Art. 69, will also have the possibility to claim their right to additional remuneration for the use of audiovisual work.