The Public Playback of Television and Radio Programs in Poland
By Lewandowski Gradek Lewandowska IPLaw Office, Poland
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In modern society it is important to have basic information how can we use author's works in everyday life while using the media, such as musical works broadcasted by radio and television organizations. The knowledge about this topic gives us guidelines how to act in accordance with existing regulations and principles of copyright law.
In Polish law rules connected with public playback of television and radio programs are based on Article 24(2) in the Polish Act of 4 February 1994 on copyright and derivative rights. The main point of this Article is that the holders of the radio and TV devices are able to use them to broadcast author's works, even when devices were placed in collective areas (accessible to everyone), if the purpose of the holders is not to obtain any financial benefits. This part of rule is connected with the regulation of the fair use of the copyrighted work, which means that each person is able to use copyrighted work in public without giving any financial profit to the author if the use of work is not infringing a normal exploitation of the work and legitimate interests of the author . Although the principle of the Article 24(2) sheds some light to the subject, there are examples in Polish cases that may give problematic issues to the topic of that fair use of the copyrighted work.
The main problem relating to the topic of the public playback of television and radio programs is how can we define obtaining or not obtaining any financial benefits. To answer these question we might go through the court of Polish judgements. On 13 April 2012 the Court of Appeals in Katowice dismissed the action of defendant and found that ‘not obtaining financial benefits’ in Article 24(2) means that as to the gainful activity based on usage of television and radio programs, it does not need to be the principal business of the operator. This conclusion was reached in view of the fact that restaurant managed by the defendant broadcasted works presented on the TV. It was also essential that works were broadcasted by using loudspeakers situated on biggest commercial areas in which client was on location, and in that case it was qualified as obtaining financial benefits by defendant.
Another important thing is that the person who is broadcasting work is the one who must proof that his action is not obtaining any financial benefits. According to the verdict of the Court Appeals in Wroclaw a judgment of 12 November 2003 stated that the Association of Artists may require payment from the public playback of radio-broadcast stations in places such as stores, and that the one who broadcasts radio program is the one who must proof that his actions are not connected with obtaining any financial benefits.
This issue does not concern only Polish legislation. The topic of public playback was also presented in case Società Consortile Fonografici (SCF) v. Marc del Corso. On 15 March 2012 the judgment of Court of Justice of the European Union stated that patients of a dentists were a small circle of potential recipients not hearing the same broadcasted phonograms, and a broadcast is not of a profit-making nature. The Court paid also attention to the correlation between obtaining financial benefits and communication to the public. It also hold that ‘a dentist who broadcasts phonograms free of charge in his dental practice, for the benefit of his clients and enjoyed by them without any active choice on their part, is not making a communication to the public for the purposes of EU law’ .
Another problematic part connected with public playback of television and radio programs is if drivers should pay money to the radio broadcasters. The main part of the problem is that radios placed in the cars are not literally placed in collective areas and that using the radio in a car can be a profit-making nature, especially while thinking about taxi drivers.
It should be remember that these rules apply only to a place that is accessible to everyone. That place must be a place that is generally accessible. For this reason, places where access is limited (eg, areas and buildings belonging to private entities, if these entities decide to restrict access to these spaces or rooms accessible only to employees) can not constitute a place, referred to in the recited provision.
Summarizing: Public reproduction of the work is covered by the copyright monopoly. The legislator has introduced a statutory license, which is an exception to this right, in the comment. This license in practice is a very important limitation of the copyright content and as such it should be interpersonal in a narrow way.
ABOUT THE AUTHOR: Aleksandra Stanisławek
Aleksandra Stanisławek is a lawyer at Lewandowski Gradek Lewandowska sp p r pr.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.