Compensation for copyright infringement in the light of the judgment of the Constitutional Tribunal of November 5, 2019, P 14/19

On November 5, 2019 The Constitutional Tribunal in the case no. P 14/19 ruled that Article 79, paragraph 1, subparagraph 3, letter b of the Act of February 4, 1994 on Copyright and Related Rights (hereinafter referred to as „the Act on Copyright and Related Rights”) shall apply to the following cases within the scope in which the right holder whose author’s economic copyrights have been infringed may demand from the person who has infringed these rights to repair the damage caused by the payment of a sum of money in the amount corresponding to twice the appropriate remuneration, which at the time of its investigation would be due as a result of the right holder’s consent to use the work, is in accordance with Article 64(1) and (2) in conjunction with Article 31(3) in conjunction with Article 2 of the Constitution of the Republic of Poland.

The purpose of the above judgment was to remove doubts that arose in connection with the earlier judgment of the Constitutional Tribunal of June 23, 2015 in the case no. SK 32/14, issued on the basis of the same provisions, pursuant to which the provision of Article 79, paragraph 1, point 3, letter b. of the Copyright Act expired on July 1, 2015. in so far as the right holder whose economic copyrights have been infringed may require the person who has infringed those rights to make good the damage caused by paying a sum of money corresponding, in the event that the infringement is culpable, to three times the appropriate remuneration which, at the time of its investigation, would have been due as a result of the right holder’s consent to use the work.

By judgment of November 5, 2019. The Constitutional Tribunal clarified the doubt whether, given the partial loss of power of the above provision in the scope relating to the possibility to claim lump-sum compensation in the amount of three times the remuneration due under the licence, the entitled person, most often the creator, may still claim compensation in the amount of two times what has not been the subject of the analysis so far.

The Constitutional Tribunal took the position in the above mentioned decision that it is permissible to claim damages in the amount corresponding to twice as much as the remuneration that would be due under the licence. The above interpretation is justified by the fact that the protection of economic copyrights is much more difficult in comparison with the protection of economic rights on tangible property, and the demand for compensation in the amount of a lump-sum remuneration (double the amount) makes it easier for entitled persons, who are the weaker parties to disputes, to assert their claims, which allows to ensure effective protection of economic copyrights against unlawful infringement. It is difficult to detect infringements but also to prove the specific amount of damage suffered, regardless of whether the rightholder is represented by the collecting society or whether he is acting alone.

The above judgment of the Constitutional Tribunal finally confirms the possibility of claiming compensation for copyright infringement in a lump sum, i. e. the equivalent of twice the licence fee.

As a consequence, persons and entities entitled under author’s economic rights claiming damages, who decide to base their action on Article 79, paragraph 1, point 3, letter b of the copyright law, do not have to show the amount of damage suffered, which is often very difficult in practice, but it is sufficient that they limit themselves to proving the amount of royalties due to them.