Size of damage caused by the dissemination of illegal files: lawyers from the Law Office speak critically about the precedent-setting decision of the Court of Appeal in Warsaw

26.01.2018

You are heartily welcome to read the newest comments by Janusz Piotr Kolczyński, Att. for Dziennik Gazeta Prawna (hereinafter: “DGP”) and Wirtualnemedia.pl website (hereinafter: ‘WM”), pertaining to the precedent-setting decision of the Court of Appeal in Warsaw of 29 August 2017, file ref. No. VI ACa 600/16 with respect to the dissemination, through Chomikuj.pl website, of files deriving from illegal sources in the context of the size of the damage caused by such activity.

The decision with respect to which a commentary was issued pertains to making available of files to learn foreign languages via Chomikuj.pl website and a certain company that started to fight against this procedure using penal and civil measures. Nevertheless, it failed to prove that its’ licence is actually worth PLN 3,500 per file and that it may, on this basis, seek double licence remuneration in line with Art. 79.1.3 b of the Copyright Law. The Court of Appeal in Warsaw decided that the size of the damage is not affected by subsequent reproductions of the same work, which, in the decision’s justification, are called “making the files available in two or a greater number of copies". In contrast to this standpoint, Attorney Kolczyński, when speaking to DGP, drew attention to the fact that the “exploitation monopoly of the author assumes his/ her participation in the first and every subsequent copy of the same work, especially on the Internet where, as of today - in principle - exhausting of proprietary copyright does not take place, in particular with respect to copies procured from illegal sources". What is more, in the attorney’s opinion, the Court of Appeal contradicts itself in this respect by claiming that if the access to the work was broader, technically easier, its’ evaluation with respect to the size of the damage would have been different. However, the petitioner failed to prove it. Attorney Kolczyński also expressed his opinion in the commentary for WM, once again emphasising that “the author has, in principle, the right to financially participate in every subsequent act of exploitation of the same work in any form.”

In his opinions, Attorney Kolczyński also pointed out to other gaps in the justification of the decision. “One may agree with it only in a small part. Namely when the Court of Appeal postulates the necessity of eliminating, from the Copyright Law, the sanction of payment of compensation in the form of double licence remuneration in the form that functions these days. Defectively formulated art. 79.1.3 letter b) of the Copyright Law does not allow for the lump-sum compensation to have the form of a one-time licence remuneration (...).”

Sources: Dziennik Gazeta Prawna, 22.01.2018 and Wirtualnemedia.pl, 23.01.2018.