'Additional Remuneration for DVDs as Magazine Inserts' Decision of the Supreme Court of Poland (Sad Najwyzszy) 24 July 2020-Case No. I CSK 631/18

摘要

1. The basis for the calculation of the additional remuneration for co-authors of an audio-visual work under Art. 70(2~1)(4) (formerly Art. 70(2)(4)) should be the number of copies of works sold, not the number of reproductions made. 2. Moreover, proceeds obtained from the use of works should actually come from this exact source of sales-hence this presumption is not met by including in the proceeds an alleged increase in future advertising revenues from a magazine. 3. The right to an additional remuneration only arises when the possibility of personal use by the end user arises. 4. The principles for calculating remuneration under Art. 70(2~1)(4) are to be interpreted narrowly and a flexible interpretation of the concept of proceeds mentioned in Art. 110 cannot be accepted. 5. It is necessary to disregard indirect benefits, whose connection with the fact of using the work in question is uncertain, immeasurable, indirect, difficult to prove and which cannot be separated from other factors influencing the proceeds of the user (e.g. income from advertisements in magazines). The income from advertisements placed on inserts with the work should be assessed differently, however. 6. Rates applied by collective management organisations may serve as a reference point for determining the amount of remuneration. Such is the case when the rates correspond to the free-market prices that are used domestically while meeting the criteria laid down in Art. 110 of the Copyright Law.