When do you need to pay ZAiKS?

A radio in the supermarket, a TV in a hotel room, the music at a public event. We advise when it is required to pay fees to organizations that manage copyrights for using them.

Generally, owners of hotels, restaurants, shopping centres, large-area stores are required to pay authors, performers, producers of phonograms and videograms through collective management organizations (e.g. ZAiKS, STOART) for playing music, television or radio in places available to customers. The Act on Copyright and Related Rights provides for the entitlement of these entities to receive remuneration for the public reproduction of their products – even if it takes place free of charge.

For broadcasting television programs in places available for an admission fee, the fee is also payable to the broadcasters (e.g. TVN S.A.). However, this law introduces some exceptions to the above rule. Radio or television owners can watch or listen to broadcast programs even in public places, unless it is related with obtaining benefits.

The above principles are confirmed by the case law of the Court of Justice of the European Union, which emphasizes the owner of a hotel or a pub allowing its guests watching television programs using the sets installed in the rooms or in such premises means public reproduction – the guests are an unspecified number of potential viewers (cf. Judgment of the ECJ in case C-306/05; Judgment of the ECJ in cases C-403/08 and C-429/08). Such reproduction has an impact on the economic performance of the facility (increases attendance) and therefore involves the achievement of financial benefits. The other thing is to play radio programs, for example in the dentist’s office. In light of the judgements of the Court of Justice of the European Union, it does not constitute a public reproduction, because it has no impact on the income of the dentist, and is also carried out for a small number of persons (ECJ judgement in Case C-135/10). In a similar tone speak the Polish courts, including the Supreme Court, which in the judgement of 28 September 2005 (Ref. No. I CK 164/05) indicated that the reproduction of works, even in the course of economic activity, would not be linked to the economic benefits, if customers are not exposed to the reception, which affects primarily a small retail spaces, small service establishments, where it is played for the personnel themselves.

So, if in our supermarket, hotel, large shop, restaurant, and in particular in a public event, we play music or broadcast radio and TV shows – we need to pay the appropriate remuneration to authorized entities through the collective rights management organization). The alternative is to use the so-called royalty-free music banks or royalty-free radio stations. Then a one-off license fee is usually paid without the participation of a collective rights management organization, with the possibility of unlimited territorial and indefinite re-use of music under the license, including its public playback.

The text originally appeared in the THINKMICE magazine for the event industry, in which we are responsible for the Law section.