Smartphone tax. Polish Filmmakers Association and a lawsuit against the State Treasury for over PLN 416 million

“Faced with the failure of work on the Act on Professional Artists, the Polish Filmmakers Association filed a lawsuit against the State Treasury regarding the so-called fee on blank media (also called the reprographic fee),” SFP said in a press release.

In it, he requests compensation for film creators and producers represented by the Polish Filmmakers Association for “the Polish state’s failure to provide fair compensation for the use of works within the scope of permitted personal use.” “The lawsuit covers 3 years (2020-2023) and amounts to PLN 416 million,” it was reported.

In information about the lawsuit, SFP reminds that “in accordance with the 2001 EU directive on copyright in the information society, film creators and producers should receive fair compensation for the use of their works as part of fair personal use.”

It was noted that the national law defines the right to use for private purposes very broadly, and therefore the average consumer of cultural goods “benefits from it every day, often without even being aware of it.”

“Pursuant to Article 23 of the Act on Copyright and Related Rights, the scope of permitted personal use covers not only the immediate family (as in most European countries), but also persons in a social relationship. Thanks to this, each of us can freely use works from legal sources (films, songs, photographs, books) for private needs, for which he does not have to pay anyone any remuneration or ask the author for permission every time,” it said.

In the opinion of the SFP, due to the current situation, “creators and producers suffer losses and do not obtain any income from exploitation carried out for private use, which obviously reduces the interest in the normal distribution of films. A commonly used solution to ensure compensation in this respect is small fees on devices and media that are most often used by consumers within the limits of permitted use.

The SFP states that the theoretical system in Poland “has actually been a fiction for years.” It was pointed out that the fees to be paid to creators are calculated on devices and media that have not been used for a long time and are not on sale.

“These include DVDs, audio cassettes and even VHS cassettes. In turn, the most commonly used devices today, such as smartphones, tablets and laptops, have remained off the list of devices subject to the fee for years,” we read in the association’s letter.

The association notes that as a result, there is a situation in which “revenues from fees on media and devices are absurdly low and lag significantly behind the amounts obtained in other European countries, and the entire system does not fulfill its basic function.”

The association points out that the Ministry of Culture and National Heritage and “other state authorities” knew the situation well, and work on changing the current model, as part of the draft act on professional artists, did not lead to the creation of a solution that would be satisfactory for the artists.

“Since the continuation of the current model means further years of significant losses for creators and producers, the Polish Filmmakers Association has decided to sue the State Treasury for damages for breach of the obligation under EU law to provide fair compensation,” it was written.

We can read further that “the violation of EU law by the Polish state in this case is so obvious that it should not raise the slightest doubt. EU law also guarantees that persons who have suffered damage as a result of a violation of EU law by a Member State have the right to claim compensation “In the past, organizations representing artists in, among others, the Netherlands and Denmark, successfully decided to take a similar step.”

The SFP states that the amount of compensation, calculated at PLN 416,234,112.30, was based on data regarding the sale of media and devices that should have been subject to a fee for years, such as, among others: smartphones, computers and tablets.

“To estimate the rates, we used the justification for the draft act on professional artists, and additionally we collected current data from other countries where fees on blank media exist and are periodically updated. The correctness of the calculations and the adopted methodology was confirmed in two private opinions of recognized copyright valuation experts.” – stated.

– Despite our many speeches and proposals, work on changing the current model ended only in the design phase. This was largely due to predatory lobbying by international corporations and the extremely populist voices of device manufacturers, who constantly threatened with alleged price increases for devices. However, the time has come to break this deadlock. Due to so many years of inaction, going to court has become necessary to ensure that our creators receive the due remuneration – comments Jacek Bromski, president of the Polish Filmmakers Association.

Bromski, in a comment attached to the statement about the lawsuit, also stated that “technology corporations are getting rich at the expense of Polish creators, with whom they do not want to share their huge profits.”

– And as regulations are being prepared that may change this, as in the case of Internet royalties for filmmakers, Reed Hastings – the head of Netflix – comes to Poland and, by a strange coincidence, after one meeting with the Prime Minister, work on the act is suspended. We have previously seen a similar lobbying mechanism in the case of subsequent reforms of the clean media fee system. However, the time of exploitation of Polish culture is over, we will speak loudly about all such pathologies and demand justice in court, he concluded.

In turn, Dominik Skoczek, director of the Association of Audiovisual Authors and Producers at the Polish Filmmakers Association, noted that the association’s activities “are guided by two goals.”

– First of all, we want to obtain compensation for Polish creators and film producers who have been suffering losses for years as a result of the government’s legislative delay. More importantly, however, we also want to draw the new government’s attention to the problem of the lack of adaptation of Polish regulations to EU directives, which is the cause, among other things, of a huge gap between the compensation for Polish creators, producers and other entitled persons, not only from the film industry, and the amounts that go to to artists in other European countries – said Skoczek.

– The lack of a modern fee system for blank media is a problem that has been known for years. The growing gap between the profits of Internet corporations and the remuneration of Polish creators could also be reduced by quickly adopting an amendment to the copyright law regarding Internet royalties for filmmakers. The EU directive in this regard was adopted 4.5 years ago and is still not adopted in Poland. As the last country in the European Union… We will also demand a quick initiative from the new government in this respect – emphasized the director of the Association of Audiovisual Authors and Producers.