Abstract

The subject of the commentary is the precedential judgment of the Regional Court in Warsaw of 31 May 2023 (ref. no. XXV C 14 87/12).
The court found that:
1. It is incorrect to impose fees only on the devices literally listed in the annexes to the Ordinance of the Minister of Culture and Arts of 2 August 2003 and ignore the contents of Art. 20 of the Copyright Act. A significant oversight is not taking into account the importance of the hierarchy of Art. 20.1 and the Ordinance. Referring the regulation of those fees to the Ordinance would be contrary to the principles of interpretation of law and, consequently, to the constitutional principles defining the hierarchy of legal acts, according to which the duties of the addressees of legal norms constitute statutory matter.
2. The basis for calculating fees under Art. 20 of the Copyright Act should be the amount obtained from selling devices at gross prices.
3. Pursuing claims by a collective management organization that fall within the scope of its activities must not be classified as business activity.
4. Fees claimed pursuant to Art. 20 of the Copyright Act are not periodical performances.
5. The share of the elements that are used only to perform functions other than copying by this type of device should be deducted from the value of a given device (its price).
These theses correspond to the civil law concept of fees as compensating to entities entitled to works and artistic performances for the effects resulting from the broad recognition in applicable law of permitted personal use of works and artistic performances (Art. 23 of the Copyright Act). According to the Court’s position, the fees apply to all devices enabling multiplication of works for personal use, including multifunctional digital devices such as personal computers and smartphones.