Solicitor (England, Wales), Warsaw, Poland
Polish cable TV operators removed some foreign TV stations (mostly German and French) from their programming offer at the beginning of this year, thus affecting the viewing habits of some 20 million viewers of which 5 million are cable TV subscribers. They did this so as not to breach the new requirements imposed on operators by last year’s amendments to the Copyright Law which came into force on January 1, 2003. Another amedment to the Copyright Law allows the collection of royalties for artistic works made available on the internet as, for example, on internet radio. The amendmentsintroduce sanctions for the retransmission of television and radio programmes where the cable operator has not received consent for such retransmission.
Amendments to the Copyright Law eliminated a provision that allowed cable TV operators to retransmit through no-fee foreign TV stations. The cable operators were given a vacatio legis of less than a month to negotiate licensing agreements with the relevant foreign broadcasters as the amendments were promulgated on November 27, 2002. A Senate correction allowing the operators to negotiate these agreements until July 1, 2003 was not accepted by the Sejm.
The amendments bring the Copyright Law into line with EU regulations and, in particular, with Council Directive 93/89 of September 27, 1993 on the cable distribution of satellite transmissions (the ‘‘Directive’’). As a result, some 600 cable operators must now negotiate separate agreements with 60 domestic and foreign broadcasters who, of course, may demand appropriate fees for the inclusion of their transmissions in a particular cable operator’s programming offer. On top of this requirement, thecable operators must also sign agreements with all organisations that administer ownership rights.
However, not all of the provisions of the Directive were included in the amendments. For example, one of the basic provisions of the Directive requires the introduction of appropriate mechanisms to facilitate negotiations between the above-mentioned organisations and cable TV operators so as to eliminate the possibility of such organisations abusing their negotiating strength. As the Copyright Law does not provide for an upper limit on the level of royalty fees that may be required, operators are faced with what they view as excessive demands on the part of such organisations.
A Sejm commission is now working on a further and larger amendment to the Copyright Law which would allow cable operators a transitional period for negotiating such agreements until Poland gains EU accession next year. The commission has also said that the present Copyright Law does not fully introduce the provisions of the Directive as it allows the nominated organisations and broadcasters a dominant position in negotiations and shifts the responsibility for concluding agreements exclusively to the cable operators.
First published in European Newsletter, combining Eastern European Newsletter, Issue 2, March 2003, Sweet & Maxwell, UK.
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