The reality in which we operate is complex, and few matters are „black and white”. As a result, it is extremely rare for us to advise our Clients to unconditionally meet someone else's monetary claims. Simply concluding that a situation is not hopeless brings a certain satisfaction, but even greater satisfaction comes from communicating this to the client, who believed that nothing could be done in their situation.
However, anyone who believes that a lawyer always takes a client to court would be mistaken. There are situations where the factual and legal circumstances are so complex, the claims substantial, and the outcome of the case uncertain, that the optimal solution for both parties is to undertake negotiations. Reaching an agreement between the parties removes legal uncertainty, allows for the partial consideration of both parties' interests, and avoids a often years-long court battle.
According to the classical Roman definition, justice is the constant and unyielding will to give each person their due. However, parties to civil law relations (as we are concerned with here) often make claims for that which they are certainly not entitled to, for that which they are probably not entitled to, or for that which they are only entitled to in a very minor degree. Demonstrating to the other party that a significant portion of their claims is clearly unfounded provides a good starting point for negotiations.
From our experience, particular caution should be exercised with claims made by collective management organisations (CMOs). These organisations often claim to represent „practically the entirety” of the worldwide repertoire (of course) for a given category of creative works. Problems with CMOs begin when such general claims are broken down into their constituent parts. It then often turns out that „the emperor has no clothes”. This was recently the case with our client who runs a VOD service.
Of the more significant threads related to disputes with collecting societies, it is worth mentioning two situations as an example:
- Creators of „contributory” works, such as a song that was created independently of a film and then used in it in accordance with the agreement with the producer, are generally not entitled to remuneration in the form of royalties under Article 70(2)(1) of the Copyright Act (as ruled, for example, by the Court of Appeal in Warsaw in its judgment of 22.05.2013, case number I ACa 1359/12). Such remuneration, in simplified terms, is only due co-creators films, meaning the individuals who made a creative contribution to its creation, e.g. by writing the screenplay. The exploitation of a film as a whole is not equivalent to the exploitation of the constituent works used within it (as, for example, the Supreme Court ruled on 3 January 2007, case reference IV CSK 306/06). In other words, if you run, for example, a VOD service and an OZZ (collective management organisation) approaches you claiming to represent, among others, the rights of creators of constituent works used in films, you essentially have strong arguments for your defence. You should negotiate.
- In accordance with Article 5(1) of the Act on Collective Management of Copyrights and Related Rights, it is presumed that a Collective Organisation is authorised to collectively manage copyright or related rights. within the scope of the authorisation granted to her and has standing in this matter. If, therefore, a given OZZ brings an action concerning claims of a specific category of creators in accordance with the scope of the permit granted to it, the other party should demonstrate that the specific creator is not represented by them. It is important in this context to establish the scope of the presumption being discussed. As far as film co-creators are concerned, the presumption operates in favour of the Polish Filmmakers Association. Regarding the creators of incorporated works exploited outside of film (e.g. film music albums), the presumption is in favour of ZAiKS. Our practice teaches us that if the trade union does not make use of the presumption, it has significant problems demonstrating which rights it actually represents. It is worth negotiating.
The issue of the scope of powers of collective copyright management organisations is interesting, especially as high-profile lawsuits are underway which may lead to further significant court pronouncements on how to practically deal with claims made by these organisations. It is a fact that the latter remain a kind of nightmare, particularly burdensome for small entrepreneurs trying to optimise costs. We invite you, of course, to use our law firm's services for copyright law matters. Our repertoire includes both conducting traditional court disputes, as well as providing advice and representation in pre-litigation negotiations.
author:
Przemysław Apostolski
This entry contains general information about the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend seeking legal advice from our law firm.