In one of the latest judgements the Supreme Court decided that profits achieved by a magazine publisher from advertisements placed inside the magazine are irrelevant for the amount of remuneration paid to co-authors and performing actors of a reproduced work.
(Judgement of the Supreme Court dated July 24, 2020 r. case np. I CSK 631/18)
Art. 70 paragraph 21 point 4 of the Act of 4th February 1994 on Copyright and related rights (I.e. Journal of laws, 2019, item 1231, later: copyright) (ACRR) states that co-authors and performing actors of an audio-visual work are entitled to adequate remuneration for reproducing their work on a copy intended for personal use. The term “adequate remuneration” is vague and requires interpretation on the case by case basis. In the above mentioned judgement the Supreme Court thoroughly analysed the above-mentioned provision by addressing the issue of definition of adequate remuneration in the context of indirect incomes of the beneficiary. Below there is a brief outline of the facts of the case.
A magazine publisher co-operated with an entity handling the process of acquiring licenses to audio-visual works and to reproduce copies of them. The publisher added the DVDs to his magazine. One of the collective rights management organizations (Organization), representing co-authors and performing actors of the reproduced works, demanded additional payment on the basis of art. 70 par. 21 points 4 ACRR.
The Organization stated that adding a copy of an audio-visual work to the magazine rises its popularity and enlarges the number of sold copies, which then will have an impact on the volume of the publisher’s profits from the advertisements. The Organisation took the position that those profits gained out of advertisements placed by third entities are directly related to the use of the audio-visual work, therefore they should be taken into account while establishing the adequate remuneration.
The Supreme Court rejected the above arguments. It stated that profits obtained by the publisher from advertisements are connected with the reproduction of work only indirectly. Then Supreme Court stated that the relation between those profits and the use of the work is hardly possible to be measured and to be separated from other factors which could have an impact on the volume of the obtained profits. Furthermore, the Supreme Court stated that it would be possible to include the profits obtained from advertisements in the remuneration due to the co-authors of the work, if the adverts and the work had been placed on the same medium.