Judyta Papp talks to Elzbieta Traple from the Faculty of Civil Law at Jagiellonian University.
Conversation was published on Lex.pl website.
Judyta Papp: The decision of the European Court of Justice has just been announced regarding case C367/15 of 25 January 2017 on executing the intellectual property rights and compliance of the domestic legal provision interpreted in Article 13 of Directive 2004/48/EC by the European Parliament and Council.
Elzbieta Traple: Yes, the decision was issued as a result of the compliant filed to the Court by a Polish economic entity and pertains one of the claims provided in Article 79 of the Copyright Act, the so-called lump sum claim, i.e. for the payment of adequate remuneration which would be payable to the creator, if the creator granted a permission for the use the property.
It seems that the creators’ environment should be very satisfied with the decision as the ground-breaking views of the Court strengthens the protection of copyright in Poland. Can you describe the essence of the problem resolved by the decision?
The Polish legislator provided that the entitled entity may claim from the violating party a double sum of money of the potential remuneration. The claimant believed that such a claim is in violation with Article 13 of the directive you mentioned, therefore, the domestic law allows establishing a lump-sump remuneration only at the level of a one-time license fee. The Court did not find such a violation and the decision suggests that Article 79 is not in conflict with the Directive in its current meaning.
Let’s talk about this difference as the entitled party may seek damages on the basis of general principles.
The difference is very material as in many situations the creator cannot prove the amount of the damage he/she incurred as, e.g. by this point, he/she has not been using the work for commercial purposes or would not have intended to grant a permission to the given entity. The creator’s damage might not be easy to translate into the the amount of potential remuneration also due to the fact that the illegal use (for example publication on the Internet) may cause the lack of interest in other forms of use, like printable form.
Photo by Judyta Papp