The issue of payment for copyright infringement is controversial, inter alia, in terms of establishing it in a constitutional manner. For this reason, the Constitutional Tribunal is to decide how to approach the issue of compensation for copyright infringement.
The Supreme Court addressed the Constitutional Court with this question 9 April 2019 The topic came out about the Polish Filmmakers Association against the cable network operator, who reissued works without a license. It's not. first case in this subject, submitted to the TK. The common courts carefully follow its course and await a binding ruling.
Compensation under the Copyright and Related Rights Act
Under the law in the event of a breach of copyright, the rightholder is entitled two alternative means of redress for damages by paying the appropriate remuneration (Article 79(1)(3)):
(a) on a general basis
either
(b) by payment of a monetary sum equivalent to twice the amount and, where the infringement is committed, three times the corresponding remuneration which would have been due at the time of its investigation for the rightful consent to use the work.
The next point of the article states that the rightholder may demand the benefit obtained (by the infringer).
Thus, the legislator has at the same time made it possible to recover and repair the damage, both of which are in practice identical. The linguistic interpretation of the rules leads to the conclusion that the victim could apply for the same payment twice. It would seem that less doubt would raise the provision of compensation by paying the appropriate remuneration, but the question was very quickly raised whether such a solution was consistent with the constitution.
There is a dispute in the doctrine whether the payment of twice, and even more so three times, the remuneration due for the use of the work is not too severe a sanction and does not serve as a criminal-repressive function rather than a standard applicable to civil law
Compliance of the Act with the Constitution
In the doctrine, there is a dispute over whether payment of twice, and even more three times, the remuneration due for the use of the work is not too severe a sanction and does not serve as a criminal-repressive function rather than a standard applicable to civil law.
The answer to this doubt was the judgment of 23 June 2015, in which the Constitutional Court held that the article, ‘to the extent that the rightholder whose copyright has been infringed, may require the person who infringed those rights to make good the damage caused by the payment of a monetary sum equivalent to, where the infringement is wronged, three times the corresponding remuneration that would have been due at the time of its investigation for the rightful consent to use the work, is incompatible with the 64 section 1 and 2 with regard to Article 31(3) with regard to Article 2 Constitution of the Republic of Poland’.
Similarly, it recognised the Court of Justice in its judgment of 25 January 2017. Regulation expired 1 July 2015, and thus the controversial issue of the payment of double remuneration and of an inconsistent position on the matter, both in the case law and among legal representatives, remains open.
Supreme Court in judgment of 12 July 2017 He stated, despite the different view of the Constitutional Court, that ‘due to the components of the copyright damage, which, in the absence of a licence agreement, is not only the amount of that charge, but also the costs of detecting the perpetrator and further costs associated with the conduct of the proceedings, the damage clearly outweighs the royalty itself.
Giving the possibility of flat-rate compensation simplifies the investigation of compensation, also fulfils the preventive functions of compensation and protects the rightholder to the right.
In this case, twice the corresponding remuneration corresponds to the sense of justice." The new Supreme Court decided to eliminate all doubts and finally settle the dispute.
Polish Filmmakers Association v. cable network operator
The Supreme Court in the case of an action for failure and payment, after the hearing in the Civil Chamber of the appeal of the defendant against the judgment of the Court of Appeal of 13 September 2017, Act number I AC, decided on the basis of Article 193 the Constitution of the Republic of Poland and Article 33(3) Act of 30 November 2016 on the organisation and procedure of proceedings before the Constitutional Tribunal to present a legal question to the Constitutional Court.
I mean, is it Article 79(1)(3) point (b) of the Act of 4 February 1994 about copyright and related rights (i.e.
Journal of Laws of 2018, item 1191 as amended) to the extent that a rightholder whose copyrights have been infringed may demand compensation for damage caused by the payment of a monetary sum equivalent to twice the corresponding remuneration which, at the time of his investigation, would have been due by the rightholder's consent to use the work, is compatible with the Article 64(1)(2) with regard to Article 31(3) with regard to Article 2 Constitution of the Republic of Poland.
The topic came out about the Polish Filmmakers Association against the cable network operator, who reissued works without a license. The lower instance courts ruled compensation of twice the licence fee. The cable appealed to the Supreme Court, alleging the illegality of double compensation, and pointing to the principle of civil law that compensation corresponds to harm and cannot lead to enrichment.
There is a concern that the Constitutional Court's finding that there is a non-compliance with the basic law and repealing the principle of double remuneration will lead to a radical reduction in copyright protection. On the other hand, it may be difficult or even impossible to demonstrate the amount of damage on a general basis.
The claim for flat-rate compensation was to effectively deter the use of works without the consent of the rightholder. The absence of this provision will ensure that users have no economic reason to seek a license, since in practice and so, at worst, they will pay as much as for contractual use of the work.
one The main constitutional principles are to protect private property. It seems a completely incomprehensible breach. one rules for the others.
Written by Rafał Czepik. Legal advisor, graduate of the Faculty of Law at the University of Warsaw, specialist in economic and civil law.