Work on a Polish legislative proposal for transposition of the Directive on copyright and related rights in the Digital Single Market (Directive 2019/790)[1] is still at an early stage, even though the deadline for transposition has passed.As the process to enact the legislation proceeds, this is a good time to look at the proposal for the provisions that realize the transparency obligation (art. 19 of the Directive). The new rules will have a major impact on the relationship between holders of economic copyright and those making use of it.
Under the EU laws, member states are required to ensure that authors and performers are regularly provided with information regarding use of their works and performances[2] from the parties to whom they have licensed or transferred their rights. The information to be provided primarily concerns the revenues generated by their works, and is necessary in particular to determine whether the agreed remuneration is appropriate in relation to the revenues in fact generated for the contractual counterpart through the exploitation of the work. This is closely related to article 20 of the Directive on seeking additional remuneration when the current remuneration turns out to be disproportionately low in relation to the revenues derived from exploitation of a work.
Under the legislative proposal, an author will have a separate, additional right to information from the licensee or purchaser of rights concerning the revenues generated through use of their work and the remuneration consequently due. The new rights of authors will go significantly beyond those provided for in art. 47 of the Act on Copyright and Related Rights,[3] which is applicable solely when an author’s remuneration is linked to the revenue from use of the work. The proposed wide-ranging disclosure obligation will include for instance regularly providing information about all revenues generated by use, separately for each form of use, regardless of whether the agreement states that remuneration is linked to the level of revenues generated through use of the work.
Evidently, to avoid protracted litigation, rightholders and users need to consider a means of regulating in full the issue of providing information concerning use of works in license agreements or agreements under which rights are transferred. Under the interim provisions proposed in Poland, the obligations discussed above will apply both to licenses and agreements under which rights are transferred executed subsequent to enactment of the changes, and to agreements executed prior to enactment, but in the latter case the new rules will only apply when the work is used after the day on which the proposed laws take effect. Therefore, the existing agreements will need to be reviewed to determine whether there are reasonable grounds for renegotiation.
Author: Piotr Grzybowski
Footnotes
[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
[2] Referred to further collectively as “authors”.
[3] Consolidated text, Journal of Laws of 2022, item 2509.