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15 January 2018
Efforts to implement EU Directive 26/2014 on the collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market are still ongoing in Poland, despite the fact that the transposition period ended on April 10 2016.
The directive aims to:
Further, the directive sets out rules that ease multi-territorial licensing with regard to the online use of author rights in musical works.
The legislature has taken this opportunity to remove existing problems and deficiencies in the functioning of the collective management system in Poland, such as unclear rules on the representation of non-members in CMOs or the practical requirement to execute a licence agreement by a user with a few CMOs, who are entitled to represent the coinciding repertoire of rights. The solution for these problems may be the introduction of collective extended licences into the copyright system.
CMOs are required to obtain authorisation from the minister of culture in order to manage copyright and related rights, on the condition that they guarantee due administration of the rights entrusted to them. When the collective management system was introduced (following the adoption of the Copyright Act of February 4 1994), CMOs were authorised to act in a wide scope of exploitation. If authorised, CMOs can represent rights holders on the basis of agreements with authors, legal provisions and agreements with other organisations.
With regard to the management of rights not entrusted to CMOs, CMOs may rely on a rather controversial and ambiguous legal presumption under Article 105 of the Copyright Act, which states that a CMO is authorised to administer and protect rights with respect to the fields of use covered by their collective administration. In practice, CMOs tend to grant themselves powers to act on the basis of the civil law concept of business management. Such a practice leads to the uncontrolled representation of rights holders by numerous CMOs, which in turn forces users to sign a general licence agreement with a number of CMOs.
The legislature is willing to adopt extended collective licences, a system which has been present in Scandinavian legal systems for several decades. According to the draft law, the main features of the extended collective licence model between the representative CMO and users will include the following:
Under the new draft law the scope of types of use that may be covered by the extended licence is narrowed solely to the specific cases of compulsory collective management indicated in the Copyright Act of February 4 1994. This solution seems more accurate than the wider and unspecified scope of situations for extended licence provided for in the first version of the draft law.
Further, the binding legal presumption of CMO authorisation to administer and protect rights is proposed to be limited to the fields of use listed in the authorisation granted by the minister of culture.
However, the draft law also contains provisions that may cause the law reform to be less effective. The main risk lies in the way a CMO's authority to represent is decided. In a situation where there is only one CMO authorised to act concerning a certain category of rights, this organisation is representative. If there is more than one CMO authorised in one category, the representative organisation is the one which represents the higher number of rights holders, which may be confirmed in two ways: the minister of culture may decide on the representativeness in CMO authorisation or in a separate decision. Where a significant change in number of rights holders represented by a CMO occurs, the draft law obliges the minister of culture to amend his or her decision. However, no such obligation appears to be imposed in cases where the representative character of CMO is decided in authorisation.
Another aspect of the new legislation that has raised doubts is the possibility for rights holders to opt out of the extended collective system. Namely, it does not appear that the legislature regulates and harmonises the rules on when and how non-represented rights holders may exercise their rights.
Another aim of the new draft law which still requires consideration is the correlation with existing provisions concerning out-of-commerce works, including solutions based on the extended collective licensing model. For instance, the CMO authorised to conclude extended licences for out-of-commerce works is designated by the minister of culture solely for five years, following a contest between the relevant parties. Further, non-represented rights holders can object to the administration of their rights, before any extended licences are granted, which is a solution not included in the new draft law.
There is an urgent need to improve the collective management system in Poland. The proposed introduction of the extended collective licensing model offers a chance to solve the existing legal and practical problems, but any such change should be considered and consistent with the collective management system as a whole in order to avoid further complications and the further weakening of the legal framework. There is still hope that the new law on the collective management of rights will be appropriately adjusted so that users and rights holders may benefit from the reforms.
For further information on this topic please contact Szymon Gogulski or Jacek Zwara at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (firstname.lastname@example.org or email@example.com). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.
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