As we wrote in Interia Biznes, the Ministry of Culture is working on amending the regulation on the reprography fee. Its aim is to adapt the so-called lists of blank media to the current reality, where using a smartphone is commonplace and VHS cassettes are almost forgotten. In practice the changes are intended to provide creators – actors, directors, etc. – with compensation for copying their workswhich is made possible by, for example, smartphones.
The ministry denies possible increases in smartphone prices
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The Ministry of Culture and National Heritage argues that if smartphones are covered by 1%. reprographic fee (commonly called the “smartphone tax”), this does not necessarily mean automatic price increases for devices in stores.
The ministry indicates that the change is expected to affect the margins of equipment manufacturers may not have a significant impact on pricesbecause in Poland they are already higher than, for example, in Germany. The fee is intended not to be a burden on taxpayersand the rights of creators “covered by big-tech companies.”
The Digital Poland Association sees it slightly differently. As its president, Michał Kanownik, told us, the analyzes conducted show that the amendment to the regulations may contribute to device prices increase by 5-7%.. – Each intermediary, wholesaler or store will add their margin to the already increased price. As a result consumers will pay significantly moreand Polish companies (…) will lose their competitive advantage to the benefit of foreign platforms – he pointed out.
The creators call for a quick change in the regulations
Although almost four months have passed since the announcement of plans to change the regulations, and the plan assumes the amendment will enter into force at the beginning of 2026, it has still not happened. Creative circles and organizations associating equipment manufacturers are divided. What’s more, both sides addressed their letters to the Prime Minister.
The first ones (including the Polish Producers’ Guild, SFP-ZAPA, the Polish Chamber of Books) appealed in November to change the regulations as soon as possible, which they described as “archaic”.
“The failure to update the list of devices and media subject to the clean media fee results in Polish creators and producers of works receive incomparably lower amounts of compensation for fair private use than creators in virtually all European Union countries. (…) The draft regulation prepared by the Ministry of Culture is the most important step in this respect a gap in the system of financing creators and producers of culturebeing an action of a clearly positive and pro-state nature.
Moreover, they pointed out that the delay in implementing the amendment “exposes the State Treasury to the need to pay high compensation due to the inconsistency of Polish regulations with EU law.” They refer here to the judgment of the District Court in Warsaw in its judgment of February this year in the case between the Polish Filmmakers Association and the State Treasury. The organization accused it of failing to update the list, and the court admitted that the current compensation system “constitutes a denial of those arising from the case law of the CJEU“.
“An increase in electronics prices is inevitable”
Equipment manufacturers and store owners see the matter completely differently. Back in August, they wrote to the Prime Minister that “introduction of the so-called smartphone tax will be at the expense of Polish companies, to the detriment of the development of the economy and will result in deepening the problem of unequal competition between domestic entrepreneurs and Asian sales platforms.
In their opinion, it is untrue to say that only large foreign technology companies will have to cover the new fee.
“Including smartphones, tablets, computers and TV sets with the reprographic fee will not only be a blow to Polish entrepreneurs, but also unod towards Chinese e-commerce entities oonce a step towards strengthening their position on the domestic market. (…) Increase in electronics prices as a consequence of the implementation of the assumptions of the draft amendment to the proposed regulation is inevitable“- they argued.
The CJEU spokesman issued his opinion on streaming
In the meantime, at the beginning of October, the Advocate General of the CJEU issued an opinion in the case of a Dutch company pending before the Court. He indicated, among others: that “a subscriber to the service of making protected works available on demand by streaming on the Internet does not reproduce these works for his own use within the meaning of this provision when he uses an additional service of making works available for use without access to the networkwhich means that these songs are saved in the memory of the subscriber’s device.
Organizations associating entrepreneurs (including Lewiatan, the Digital Poland Association, the Association of Entrepreneurs and Employers) sent their letter to the Prime Minister. They explained that the spokesman “states unambiguously that the possibility of copying works as part of the use of streaming does not mean its reproduction for private usey“, so “there is no longer any doubt that the implementation of the draft amendment to the regulation in the currently proposed content will be possible contrary to EU law“.
Creative circles call these arguments “obvious disinformation”, because “Streaming hasn’t made copying and private use of songs disappear. Only the form of these activities has changed, which, however, still entitles creators to receive remuneration for their work.
What is crucial, however, is that the Ombudsman’s opinion is only the first step towards shaping legislation does not have to be (although it usually is) taken into account by the CJEU.
“The Ombudsman’s opinion is not a judgment of the CJEU”
We have asked the Ministry of Culture to provide information on the current state of work on amending the regulation. As pointed out by spokesman Piotr Jędrzejowski pthe project is at the stage of inter-ministerial consultations.
At the same time, he pointed out that the ministry’s work may be based on judgments, not opinions.
“The opinion of the Advocate General is not a ruling of the Court of Justice of the EU and cannot be taken into account in the current work of the ministry. Using streaming services on smartphones or tablets does not exclude the possibility of using these devices also to copy works for private use. Compensation fees for smartphones and tablets apply in many EU countries,” we read in the response.
The President of the Digital Poland Association believes that the ministry should not ignore opinions in legislative work.
– In this situation, it is worth postponing decisions until the Tribunal issues a ruling and analyze its legal consequences so that Polish provisions are fully consistent with the EU interpretation of law. At the same time, it is worth conducting a reliable study of the so-called copyability, which would show the actual scale of any possible loss due to permitted copying – Michał Kanownik tells us.
We have not received confirmation from the Ministry of Culture and National Heritage whether it is planned to suspend work on the amendment until the final judgment of the CJEU. It is usually issued within a few months of the announcement of the Ombudsman’s opinion.
Paulina Błaziak
