The President of the Republic of Poland has signed a “small” amendment to the Copyright Act that increases the rights of performers

On July 2, 2015, the President of the Republic of Poland signed a “small” amendment to the Copyright Act. It is one of the three amendments to the Copyright Act – together with a “big” amendment and amendment regarding the rights of broadcasters in the scope of re-broadcasting its own productions – which has recently been examined by the Sejm (Parliament).

The adopted amendment is a result of implementing Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyrights and certain related rights whose implementation obligation expired on November 1, 2013.

The adopted amendment assumes three main areas of change within the copyright law:

• standardizing the manner of calculating the term of protection of proprietary copyrights to a musical work with lyrics;
• extending the term of protection of related rights (rights to performances and phonograms);
• ensuring appropriate protection of rights of performers throughout their lives.

The small amendment standardized the manner of calculating the term of protection of verbal and musical works. Currently, the term of protection depends on whether co-authors intended to create a joint work, and thus whether such works can be classified as works of joint authorship in the meaning of Article 9 of the Copyright Act.

The introduced change concerned verbal works and musical works if such works are created specifically for the purposes of a given work comprising words and music. According to the new law, a 70-year protection term should be counted from the latest death of the following persons: author of the verbal work or musical work composer. This change was intended to eliminate situations in which, in the case of works comprising words and music that are not deemed works of joint authorship, proprietary copyrights to the text would expire earlier or later than the right to the music.

The second change resulting from the amendment is the extension of the term of protection of phonograms and performances recorded by phonographs from 50 to 70 years. The reason behind this change is an attempt to eliminate situations in which performers – starting their careers at a very young age – are deprived of income from their artistic activity at the end of their lives.

The legislature has also introduced the right to additional remuneration for performers in the extended term of protection, i.e. after the lapse of 50 years of the phonogram being published or otherwise distributed – provided the transfer of rights or granting of exclusive license was done on the basis of the payment of one-time remuneration. Such remuneration would be paid by a collecting society selected by the Ministry of Culture and National Heritage and correspond to 20% of revenue generated by the phonogram producer in the previous year on account of multiplication, putting on the market and making the phonogram publicly available in such a manner that anyone can access it at a place and time of their choosing (i.e. for example on the Internet). On the other hand, if the transfer of rights or granting the exclusive license was done on the basis of remuneration paid periodically, after the lapse of this term advances and other reductions may not be deducted from the performer’s remuneration.

The last major change resulting from the “small” amendment constitutes an attempt to provide an adequate level of protection to the rights of performers throughout their lives. For this purpose, the legislature decided to introduce the principle of “use it or lose it” to the Polish legal system. According to this principle, if – after the lapse of 50 years of the work being published or otherwise distributed – the producer does not put a sufficient number of phonogram copies on the market (a number that considering the characteristics of the work would satisfy rational needs of recipients) or does not make the phonogram available in such a manner that anyone can access it at a place and time of their choosing, the performer or his/her heirs may terminate the agreement upon transfer of rights or exclusive license on the terms and conditions indicated in the Act. The termination of the agreement with the producer will be effective only after the lapse of one year from the day of serving the relevant notice of termination provided the producer still fails to exploit the phonogram in the manner specified above.

It might prove problematic in practice to tell what requirements putting copies of the phonogram on the market has to fulfill to be regarded as “sufficient”. According to the justification of the amendment draft, the legislature decided to rely on the definition of the “published work” as provided by i the Paris revision of the Berne Convention for the Protection of Literary and Artistic Works (Journal of Laws of 1990, no. 82, item 474), where fulfilling the requirement of publishing a work depends on whether the form of publication of its copies complies with rational needs of recipients that should be determined in light of characteristics of a given work. Unfortunately, at the present stage there are no reliable factors that would help us conclusively resolve this issue.

What’s interesting, changes introduced by the “small amendment” do not concern videography and audiovisual works. This matter aroused a lot of controversy both at the level of EU and in the course of legislative works in the Polish Parliament.

The amendment will enter into force after 14 days of its publication and shall be applicable to works that were subject to protection pursuant to the previous provisions on November 1, 2013 and to works created after this date.