The extension of the reprographic fee cannot be introduced in the proposed form, because it would violate EU regulations – believes the Legislative Council, as reported in “Dziennik Gazeta Prawna”. A number of comments were submitted to the project of the Ministry of Culture, National Heritage and Sport.
At the beginning of May this year, the Ministry of Culture, National Heritage and Sport sent for consultations and public consultations a draft act on the rights of a professional artist. As “DGP” reminds, the solutions provide support for the lowest-earning artists. They are to receive subsidies for social and health insurance contributions.
Reprographic fee – project
The money will come from a reprographic fee for devices that allow you to copy music, films, books and blank media. The fee is already operational, but – as previously indicated by the Ministry of Culture and National Heritage – it has not been updated for several years. After the changes, the fee would be charged to computers, tablets and hard drives.
“The problem is that its introduction in the form proposed by the Ministry of Culture would violate EU regulations. This was pointed out in the opinion of the Legislative Council to the Prime Minister, which listed five points of non-compliance with the EU directive and the jurisprudence of the Court of Justice of the European Union” – the newspaper writes.
– The method of calculating and collecting this fee, however, requires updating. The provisions on this fee have partially lost their raison d’être with the departure from physical carriers as a form of sharing works. In the new business models of the art and culture market, users get to know the song via streaming or a web browser and often do not have any technical means of copying the song – notes Tomasz Zalewski, attorney-at-law and partner at Bird & Bird law, in an interview with DGP.
– The reform of the reprographic fee therefore requires, first of all, an examination of the current real scale of copying works under permitted personal use and adjusting the structure of this fee, and in particular its amount, to the estimated damage actually incurred by authors due to the reproduction of their works under such use – Zalewski adds.
Reprographic fee – remarks
As we read in the article, the EU Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society sets several conditions. “Compensation should go to artists whose works are actually reproduced under fair use. Meanwhile, at least according to the Legislative Council, the Ministry of Culture and National Heritage project does not make payments dependent on the actual reproduction of works or even whether the artist has created any work at all” – indicates “DGP”.
In the opinion of the Legislative Council: “on the contrary, these funds may theoretically go largely to entities (i.e. professional artists) who have not produced any works (…) or whose works have not been reproduced under fair use, and a number of entities, whose works have been reproduced in this way may be left without fair compensation. “
It is, for example, a stage artist who only performs someone else’s repertoire and has never released any album. As “DGP” explains, in the event of entering the project in its current form, “it will benefit from the money from the reprographic fee, although the works made by it cannot be copied under the permitted personal use”.
“Although no one denies that perhaps these artists require support, but according to EU regulations, it cannot come from the reprographic fee” – emphasizes the daily.
Another objection, in the opinion of RL, concerns the distortion of the very idea of the reprographic fee. “If it is to be a compensation for the fair personal use, it should not necessarily be charged for devices or media used by entrepreneurs or public administration. The office computer is not used to watch copied films on it” – notes the newspaper. In the opinion of the Legislative Council and the Minister for the European Union, Konrad Szymański, it is therefore necessary to distinguish between devices used for private and professional purposes.
As “DGP” adds, in the opinion of both the Legislative Council and the Minister for the European Union, the project of the Ministry of Culture and National Heritage, for example, does not contain any criteria according to which the damage suffered by artists is to be estimated due to the reproduction of their works under fair use. Moreover, it was noticed that the proposed changes do not provide for regulations regarding the reimbursement of the unduly charged reprographic fee.
The daily asked the Ministry of Culture whether it agreed with the submitted comments and whether it anticipated possible changes to the project.
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