The method for calculation of compensation for infringement of copyright is not conformable to the Constitution of the Republic of Poland

The Constitutional Tribunal ruled that article 79, section 1, subsection 3b of the Polish Act of 4^th February 1994 on copyright and related rights to the extent that an entitled person whose proprietary copyrights have been infringed may demand from the person who has infringed such rights to repair the damage caused by payment of a cash amount equivalent to – in case infringement is culpable – three times a suitable remuneration which at the moment of such remuneration being asserted would be due on account of the entitled person’s consent to use the work, is not conformable to article 64,sections 1 and 2 in conjunction with article 31, section 3 in conjunction with article 2 of the Constitution of the Republic of Poland.

A constitutional complaint was lodged by a big cable TV network operator who due to the absence of agreement on the amount of licence fees for a certain period after expiry of a contract with a relevant organization of collective copyright management had been rebroadcasting TV programmes in a cable network without concluding a suitable contract. The organization petitioned the court for payment of damages totalling three times the amount of licence fees due to it, and its action was allowed.

In the opinion of the plaintiff, the provision of article 79, section 1, subsection 3b of the Act on copyright and related rights on the basis of which damages were adjudged violates the right to equal protection of property and other property rights.

The Polish Constitutional Tribunal shared this view and found the regulation to be violating the principle of proportionality and is an expression of too far going interference in material freedom of the person committing a tort.

For it is not acceptable that a holder of proprietary copyright is allowed the possibility of asserting such claim for damages which would wholly diverge from the amount of damage suffered and be a multiple thereof.

Moreover, entering flat-rate elements in a claim for damages may not lead to a complete loss of proportion between the amount of damage suffered and the damages claimed. This is an excessively severe sanction.

The result of the ruling so worded is elimination as of 1^st July 2015 of a flat rate calculation of compensation for infringement of copyright which will be done in line with general principles.

• Judgment of the Constitutional Tribunal of 23^rd June 2015, file reference number SK 32/14