Open letter: Extend the Polish model of statutory remuneration for audiovisual authors to on-demand usages

The Society of Audiovisual Authors, its 33 members in 25 countries and its supporting Board of Patrons made of prominent European screenwriters and directors, would like to congratulate the Polish Ministry of Culture and National Heritage on the publication of the draft law implementing the EU Directive 2019/790 on Copyright and Related Rights in the Digital Single Market (DSM Directive) in the Polish Copyright Act.

The Ministry indeed built on the Polish existing legislation ensuring audiovisual authors a fair remuneration for the use of their works in the different fields of exploitation and supplemented it by adding video-on demand usages, which have become a prominent source of access to and consumption of audiovisual works for the audience. We trust the Parliament to support the proposed draft law to adapt the Polish legislation to the audiovisual market revolution.

The flourishing Polish cinematography and audiovisual production are a key part of Europe’s rich culture. The effective enforcement of authors’ rights in Poland and increased legal certainty provided to users in the past years have been a substantial reason why the audiovisual market in Poland has been constantly growing.

By joining the group of countries like Spain, Italy, Switzerland, France, Belgium, Slovenia, Lithuania and Estonia that provide audiovisual authors with rights to remuneration with mandatory collective management for on-demand uses, Poland is granting its audiovisual sector the most efficient legal mechanism to stimulate the production and exploitation of high-quality audiovisual works.

To counter any misconceptions about authors’ rights that may emerge with alternative proposals in the legislative process, we would like to hereby provide a few clarifications: 

• Contractual mechanisms that some streaming platforms put in place may only be supplementary to statutory solutions. However, they are not the way to efficiently implement the DSM Directive.
• In fact, authors tend to be in the weaker contractual position when they transfer their rights and need the protection provided by law to be able to fully benefit from the rights harmonised under the DSM Directive. Most filmmakers are freelancers, operating out of the social security system and only a few of them have real power to negotiate contract provisions that exceed beyond minimal standards.
• Article 18 of the DSM Directive allows Member States a choice of different existing or newly introduced mechanisms to guarantee "appropriate and proportionate remuneration” to the authors. The solutions contained in the draft law are therefore compliant with the DSM Directive, as they concern the exploitation of audiovisual works on the internet, and thus within the scope covered by the DSM Directive.
• There is no basis to claim that such a remuneration for audiovisual authors would be considered as a "digital tax”. The basis for the statutory right to remuneration for authors in the audiovisual sector is the enforcement of the civil law, not any public fiscal law nature.
• Remuneration to authors and performers is a payment by the copyright users to those creators for the use of their works. It does not have a fiscal function and is characterized by equivalence. There is a clear link between the remuneration to the creator and the benefit of the copyright user (TV station, cable operator, DVD distributor, streaming platforms, etc.).

In Poland, like in the other European countries, the concept of statutory remuneration rights, with mandatory collective management by the relevant collective management organisation, has proven to be the most effective legal regime to secure equitable remuneration for audiovisual authors for the use of their works. Any new legislation should guarantee that audiovisual authors are entitled to an unwaivable right to remuneration for the exploitation of their works online which shall be payable through collective management organisations.

We urge you not to miss the chance to achieve a balanced and non-discriminatory situation by introducing a right to remuneration for the digital fields of exploitation and fix the lack of fair remuneration to audiovisual authors in the digital market, through the implementation of the DSM Directive. This is essential to establish a level playing field for all economic actors exploiting audiovisual works and ultimately safeguard authors’ interests.