Triple the amount of respective remuneration is unconstitutional!

The Constitutional Tribunal has determined that triple the amount of respective remuneration in the case of culpable infringement of copyright is unconstitutional (file no. SK 32/13). This right was provided for in Article 79(1)(3)(b) of the Copyright and Related Rights Act and allows demanding the payment of triple the amount of respective remuneration for illegal, culpable use of someone else’s work.

Article 79(1)(3)(b)

The right holder whose proprietary copyrights were infringed may request that the person who infringed those rights redress the damage by payment of double or, where the infringement is culpable, triple the amount of respective remuneration that would have been due as of the time of claiming it in exchange for the right holder’s consent for the use of the work.

The Tribunal ruled that in the scope in which the right holder’s proprietary copyrights were infringed such right holder may request that that the person who infringed those rights redress the damage by payment of double or, where the infringement is culpable, triple the amount of respective remuneration that would have been due as of the time of claiming it in exchange for the right holder’s consent for the use of the work, this provision is in violation of Article 64(1) and (2) in conjunction with Article 31(3) in conjunction with Article 2 of the Constitution of the Republic of Poland, i.e. the principle of respecting and protecting the freedom of persons and the principle of equal legal protection of property and other rights in rem.

Making its judgment, the Tribunal pointed out in the case of copyright infringement it is very often difficult to assess the amount of damage resulting from copyright infringement. This creates room for abuse and in effect leads to claiming amounts disconnected from the incurred damage. As was indicated by the judge Piotr Tuleja “the questioned regulation contains too strict a sanction.”

The decision can have very serious consequences that should be analyzed in some detail. As results from Article 4011 of the Code of Civil Procedure, in case the Constitutional Tribunal finds a legal act or a provision of law to be unconstitutional, this may serve as a reason to request reopening proceedings which were closed by a final judgment. Therefore, this opens the possibility to resume the cases in which the ruling was based on the aforementioned Article 79(1)(3)(b) of the Copyright and Related Rights Act.

It should be reminded though that this issue will also be handled by the Court of Justice of the European Union in the context of its conformity with the provisions of Directive 2004/48/EC (the Enforcement Directive) – which has already been mentioned in our blog.

What’s important, double the amount of respective remuneration in the case of non-culpable infringement of copyright can still be demanded, which may raise justified doubts as to the rationality of such approach, so most probably the legislature will also take steps in this respect.

It should be noted the decision-making practice seems to differ somewhat from the perception of the Tribunal – instead of excessive rulings it happens more frequently that the courts award very limited damages (like in the known example of a few hundred Polish zlotys for infringing copyright to a song by Czesław Niemen). It’s true there are often significant difficulties in proving the value of a license or the amount of damage, but cases of abuse (claiming excessive damages) happen much less often than the courts awarding very low amounts, which makes the protection de facto illusory.

However, in order to get a bigger picture we will have to wait for the Tribunal to present written reasons for its judgment. The case is fundamental to the practice of claiming compensation on account of copyright infringement and should be the subject of interest for the legislature which is obliged to remove the defective provision from the legal system.