Multiple the amount of respective remuneration under the copyright law prior to CJEU

A common request for payment in multiples of the amount of respective remuneration for the unlawful use of another person’s work is a widely debated problem in the jurisprudence. The right in question has been provided for in Article 79(1)(3)(b) of the Copyright and Related Rights Act and since the very beginning has stirred a lot of controversy, in particular as to its conformity with the provisions of 2004/48/EC Directive (the Enforcement Directive). The main objection directed at this right is that it de facto introduces to the Polish law compensation of a punitive nature – similar to the US legal system.

As it turns out, in the near future this problem will be handled by both the Court of Justice of the European Union and the Polish Constitutional Tribunal. On Friday, the Supreme Court (file no. V CSK 41/14) decided to refer the question to the Court of Justice in Luxembourg for a preliminary ruling as to the conformity of this provision with EU law. The Court, examining an action brought by the Polish Filmmakers Association (Polish: Stowarzyszenie Filmowców Polskich) against an association running a local cable TV, noticed the regulation provided for a request of payment in multiples of the amount of respective remuneration may violate EU provisions in light of the rule that compensation may not be a source of income and its upper limit should be determined by the amount of damage incurred.

A similar problem was raised in a complaint submitted to the Constitutional Tribunal (file no. SK 32/14) which objected that provisions of Article 79(1)(3)(b) of the Act violate the right to equal treatment, the constitutional principle of proportionality and principle of social justice due to unjust differentiation of entities. Such arguments were partially shared by the Ombudsman who observed this claim leads to unjustified favoritism towards proprietary copyright holders. On the other hand, the General Prosecutor thinks differently and has also delivered his respective opinion.

A session of the Constitutional Tribunal in this matter will be held as soon as 23^rd June of this year. The question is undoubtedly attractive for copyright holders as it allows them to pursue – in the case of culpable violation – even triple the amount of respective remuneration that would be applicable on account of the copyright holder granting consent to using such work. A decision in this case may significantly impact the practice of pursuing claims on account of violating copyrights and may entail the need of legislature’s swift intervention in this respect. Unfortunately, the decision may also contribute to lowering the level of copyright protection in Poland. We will therefore keep you posted about what is happening in this matter!