This sequence of posts presents the implementation of the CDSM Directive in Poland and discusses a few of the controversies linked to the brand new provisions in Polish legislation. The primary publish gave an summary of the implementation, together with the brand new provisions on TDM and the implementation of Article 17 of the CDSM. This second publish discusses the best to remuneration below Article 18. An upcoming third publish will cowl Article 15 on the rights of press publishers.
The implementation of Article 18 CDSM – guaranteeing acceptable and proportionate remuneration
The CDSM Directive additionally addressed the issues of copyright contract legislation and transfers of rights, primarily within the context of guaranteeing acceptable remuneration. This space was topic to an evolving dialogue in Poland. The talk centered, amongst different issues, on whether or not Article 18 ought to end in amendments to chapter 5 of the Polish Copyright and Associated Rights Act on the switch of rights, and/or if new “extra remuneration” because of authors and performers needs to be offered. The implementing legislation introduced amendments in these two areas: within the chapter devoted to contracts, and in new provisions on the extra (residual) remuneration.
1. Amendments within the chapter on the switch of rights
Based on Article 43 (1) of the Copyright and Associated Rights Act, until said in any other case within the contract, the rightholder is entitled to remuneration. Part 2 of Article 43 was amended in the middle of the implementation, and it now states that the remuneration have to be truthful and acceptable to the scope of the rights transferred, the character and scope of the usage of a piece, and the extent of the income obtained from the usage of a piece. Part 3 of Article 43 establishes a presumption that remuneration proportionate to the income satisfies this requirement.
Amendments to the so-called “bestseller clause” have been additionally launched. The availability in keeping with which the creator might declare larger remuneration in court docket within the case of gross disproportion between the remuneration agreed within the contract and the income from the exploitation of a piece have been topic to debate, notably after a lawsuit regarding “The Witcher” novel and the videogame developed based mostly on this [ discussed in English here and in Polish here]. On account of the amendments, the creator might declare larger remuneration in court docket if the remuneration is inadequately low. This provision gave rise to new claims in courts, with the instance of the bestseller Polish novel: “Peasants. The Story of our Grandmothers” . The dialogue for the time being issues largely the publishing sector.
2. Extra remuneration
As for the problem of extra (residual) remuneration, the preliminary proposal in 2022 was to increase the scope of Article 70 (2¹), which grants extra remuneration to co-authors of an audiovisual work and performing artists to cowl on-line makes use of, notably making out there on audiovisual on-demand platforms. Article 70(1) offers a presumption that the producer of an audiovisual work acquires, based mostly on the contracts on the creation of an audiovisual work or contracts on its use, unique financial rights to take advantage of the audiovisual work as an entire. Separate from the remuneration set by contract, part 2¹ offers for “extra remuneration” due from the “person” of an audiovisual work, for instance for screening the work within the motion pictures. The availability on extra remuneration was launched in 2007 and was topic to amendments in the middle of the implementation of the CDSM Directive.
The brand new draft proposal submitted for public session in February 2024 didn’t present for any new “extra remuneration”. It needs to be famous that Article 70(2¹) was topic to criticism and controversy and it was identified that implementation of the CDSM Directive can be the time to re-think the framework for such remuneration. This contains three main questions: which classes of rightholders needs to be entitled to residual remuneration, for which acts of exploitation ought to the remuneration be granted, and may the remuneration be collected by CMOs. The dialogue began from Article 70 (2¹), and anxious granting extra remuneration just for audiovisual works, in relation to creating the work out there to the general public on demand and the rebroadcasting of an audiovisual work. There have been claims that music streaming platforms also needs to pay such remuneration to authors and performers of musical works, adopted by solutions from the literary affiliation and from translators that the authors of literary works distributed as audiobooks needs to be included, and never solely the narrators/performers of those works.
In the end, the provisions adopted within the Copyright and Associated Rights Act embrace:
- Article 214 introducing a brand new proper to acceptable remuneration for the making out there on demand of literary, journalistic (press), scientific, musical works or musical works with lyrics, and by-product works (together with translations).
- An amended Article 18 (3) offering that the best to remuneration from article 214, Article 70 ust. 2¹ and Article 861 can’t be waived, transferred or made topic to execution.
- Article 70(2¹) factors 5 and 6, granting a proper to enough remuneration managed by CMOs to authors and performers of audiovisual works, for making out there in such a method that the general public can entry the work on the time and place individually chosen by them and for rebroadcasting of an audiovisual work.
- Article 861 introducing a proper to enough remuneration for performers of the works listed in Article 214.
In Poland, the dialogue continues on how these provisions will likely be utilized in observe. Lots of consideration will now be paid to the preliminary ruling requested by the Belgian Constitutional Courtroom on remuneration rights.
