The right to statutory remuneration referred to in Article 70(2¹) of the Act is a personal right. Therefore, any contractual transfer or waiver of this right is considered invalid. Moreover, a waiver of royalties included in an agreement between the performer and the producer cannot have effect towards the entity using the audiovisual work, because the obligation to pay royalties does not arise from a contract, but directly from the Act on Copyright and Related Rights. As a result, the entity obliged to pay royalties should settle them through the relevant collective management organization (CMO), which then distributes the payments to the entitled performing artists.

The legal basis for the obligation of users to pay royalties is the Act on Copyright and Related Rights of 4 February 1994, as amended. The collection of royalties from users is carried out by collective management organizations for copyright and related rights (“CMOs”), which operate on the basis of authorizations granted by the minister responsible for culture.

Rightsholders who entrust the management of their rights to ZASP by concluding an agreement with ZASP gain certainty that they will receive the royalties due to them. By managing their rights, ZASP negotiates and signs agreements with users that define the rules for paying such remuneration. On this basis, ZASP collects the due royalties from users and then distributes and pays them to the rightsholders. From the amounts of remuneration received from users, ZASP makes deductions to cover the costs of collective management. The calculation of remuneration due to rightsholders, its distribution and payment are carried out in accordance with the rules set out in detail in the Distribution Regulations.

If a user avoids paying the remuneration due to ZASP’s rightsholders, ZASP takes action to collect these amounts using all legally available measures, including taking legal action against such users in court.

This Directive is the EU’s response to current challenges in the field of copyright, related to the development of digital technologies, which significantly change the way audiovisual works are created, produced, and used.

The draft act amending the Act on Copyright and Related Rights, which is currently being processed, is an important legal instrument from the perspective of performing artists. Its purpose is to implement into the Polish legal system EU Directive 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market. Among other things, it regulates the issue of remuneration for the online exploitation of audiovisual works.

Article 70(2¹) guarantees co-authors of an audiovisual work the right to additional remuneration for the exploitation of the work in various fields of use, in particular for cinema screenings, public performance, broadcasting, and reproduction.

In addition, Article 70(3) of the Act on Copyright and Related Rights imposes an obligation on users to pay this remuneration through the relevant collective management organization for copyright and related rights – in the case of actors, through ZASP.

Article 70(2¹) and (3) – wording:
“Article 70
2¹ Co-authors of an audiovisual work and performing artists are entitled to:

1. remuneration proportional to the revenues from screening the audiovisual work in cinemas;

2. appropriate remuneration for the rental of copies of audiovisual works and their public performance;

3. appropriate remuneration for broadcasting the work on television or through other means of public communication;

4. appropriate remuneration for reproducing the audiovisual work on a copy intended for personal private use;

5. appropriate remuneration for making the work available to the public in such a way that anyone may access it at a place and time of their own choosing;

6. appropriate remuneration for the retransmission of the work.

The user of an audiovisual work shall pay the remuneration referred to in paragraph 2¹ through the relevant collective management organization for copyright or related rights.”

EU Directive 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market aims to adapt EU copyright law to the needs of the developing digital economy. One of its objectives is to regulate remuneration for the online exploitation of audiovisual works. Currently, the obligation to pay royalties lies with users who distribute works, with the exception of streaming platforms.

A field of exploitation is the way in which a work or an artistic acting performance included in a work may be used. Examples of fields of exploitation include:

§ in the scope of fixation and reproduction:

• the production of copies of a work using a specific technique, e.g. printing, reprography, magnetic recording, or digital recording

§ in the scope of trade in the original of the work or its copies:

• placing on the market
• lending
• rental

§ in the scope of dissemination of a work:

• public performance
• screening
• playback
• broadcasting
• retransmission
• making the work available to the public in such a way that anyone may access it at a place and time of their own choosing