A new tax on youtubers?

The Polish scene of Youtube was shaken by online articles announcing government plans to introduce a new tax. The headlines threatened the new fee on the content and the obligation to report to the KRRiT. The reality, however, is not as terrible as the authors tried to present.

The alarm was triggered by an announcement on the government website of the National Broadcasting Council (hereinafter: KRRiT), which was placed there 12 January current year[1]. This notice recalls the obligation to submit an entry in the lists kept by the Chairman of the NRA. Why would such an obligation come about suddenly, and why would it be covered by creators publishing their content on Youtube?

New responsibilities in the act on cinematography

This is due to the provisions introduced on the basis of Act dated 11 August 2021 amending the Broadcasting Act and the Cinema Act (Journal of Laws of 2021, item 1676). They apply on the day 1 November 2021 the obligation to submit such an alert on:

Operators providing on-demand audiovisual media services according to Article 47ca(1) Broadcasting Act[2].

Video sharing platform providers - according to Article 47n(1) The Broadcasting Act.

Such notification should be made within the time limit 14 the days before the date on which the public audiovisual media service is made available on request/supply of the platform. On the other hand, the entities operating on the day 1 November 2021, i.e.

before the entry into force of these provisions, they are required to submit services to the list by 1 February 2022 This could certainly have caused a slight concern among the creators, who were not familiar with the provisions of the Act.

In addition, the information provided on the government website directly indicates how, within the meaning of the Broadcasting Act, the concept of ‘audiovisual media services on demand’ should be understood.

„On-demand audiovisual media services within the meaning of the Broadcasting Broadcasting Act can only be considered to fulfil all the conditions specified under Article 4(6a) The Broadcasting Act. According to  Article 4(6a) The laws, the audiovisual media service on request, shall be the media service:

• provided in the course of this business activity;
• making audiovisual programmes publicly available on the basis of a catalogue;
• the directory is established by the provider of the service.

Upon fulfilment of the above criteria, audiovisual on-demand media services may be considered to be services provided using video sharing platforms, e.g. so-called YouTube channels."[3]

The consequence of obtaining such an entry is the need to pay to the Polish Film Institute (hereinafter: PISF)[4] height 1.5% revenue generated by fees for access to on-demand audiovisual media services made available to the public or for the issuance of commercial communications. The final level of deposit depends on which of the proceeds is higher[5].

It is understandable that this information, additionally sold with a sensational and very "climatic" title, may have caused some confusion among the creators who achieved earnings on this platform. Especially in a period where daily mentions Polish Deal and its impact on the salaries of different social groups. Before you proceed to recalculate the possible charge and check ways to change the channel's location to French Polynesia, you should look at the records of these laws a little more closely.

Who will bear new costs

Accurate reading into the content of the recipe itself Article 47ca and twin Article 47n In the Broadcasting Act, it is possible to conclude that the obligations related to the entry concern service providers, not users of the portal and content developers.

It can also be questioned whether the hobby posting of content on YouTube could be considered as providing “audiovisual on-demand services”. The issue may be different for professional content creators, videobloggers or other artists.

Only persons carrying out direct activities in this way and achieving commercial success should, however, take a closer look at the mandatory listings of the President of the NRA.

However, even though the interpretation of the rules by the KRRiT is unfavourable for authors, there is still a question of compliance with the relevant formal conditions to be charged to PISF. For, as this is shown by Article 19(6c) The act on cinematography exempt from charge are the creators of:

micro-entrepreneurs,

the number of users of all audiovisual media services made available to the public on demand in the year preceding the year in which the obligation to pay to the Institute is established does not exceed 1% subscribers of data services providing broadband access (in 2020 It was over. 8,429,000,000 users).

The concept of micro-entrepreneur should be clarified. The act on cinematography here refers to the understanding of this concept according to Article 7(1)(1) Act dated 6 March 2018 - Business law (i.e. Journal of Laws of 2021, item 162 as amended). This term means an entrepreneur who at least one year two the last financial years have met together two the following conditions:

employed less than 10 employees and

has achieved a net annual turnover of goods, goods and services and financial operations not exceeding the equivalent in 2,000,000 EUR, or the sum of the assets of its balance sheet at the end one of these years did not exceed the equivalent in gold 2,000,000 EUR (converted at the average rate announced by the NBP on the last day of the financial year selected to determine the status of the entrepreneur. In 2021 This limit was therefore 9,198,800 PLN).

As can be seen, the fees will only affect the largest players who make significant revenues in a given year or employ at least a dozen employees. This obligation will probably be imposed on companies for which the service is one with marketing possibilities.

This time the “new tax” announcements were more a cry for growth and smoke in the eyes than a real fire.

Damian Kuszewski

The author is a graduate of the Warsaw School of Economics in Finance and Accounting, and a graduate of the Faculty of Law at SWPS. From 2018 Associated with Russel Bedford Poland. His professional interests are tax law and, in particular, income taxes.