Godziwa rekompensata i jej dochodzenie w odniesieniu do dzieł osieroconych (art. 35(8) ust. 5 ustawy o prawie autorskim i prawach pokrewnych)

Authors:

• Piotr Piesiewicz

Abstract

The pursuit of ‘fair compensation’ for using a work that has lost the status of an orphan work is a complex issue due to the way the claim is pursued. An analysis of the provisions of the Act of 4 February 1994 on Copyright and Related Rights clearly shows that the demand that ‘fair compensation’ be paid is a claim for payment of remuneration for using a work that had had the status of an orphan work and not a claim for damages. In determining the amount of such compensation, which is due to the copyright holder, all three criteria listed in article 358(5) of the Copyright and Related Rights Act have to be taken into account. These are the nature and scope of use of this work, the amount of revenue obtained on the basis of Art. 355(3), and the loss sustained by the rightholder. When calculating fair compensation, these three criteria must be considered together. There is no doubt that, on the one hand, a claim for the payment of ‘fair compensation’ is a civil law claim, and therefore it should be pursued in the civil procedure. On the other hand, an effective claim for payment is conditional upon prior final decision issued in administrative proceeding. It means that the holder of copyrights in an orphan work, before obtaining ‘fair compensation’ for the use of his/her rights, must initiate administrative decision or the so-called tacit acknowledgement. Consequently, we should venture a statement that the exercise of rights by the holder of copyright in an orphan work, in accordance with Chapter 3 of the Copyright and Related Rights Act, requires as a rule the initiation of two separate procedures. The expiry of the status of an orphan work is indispensable for the rightholder to be able to demand ‘fair compensation’. In addition, it should be added that the holder of copyright in an orphan work acquires the locus standi in the civil proceedings for payment, enabling the exercise of the right referred to in Art. 358(5) of the Copyright and Related Rights Act, only when the status of an orphan work expires. On the other hand, the capacity to act as a defendant in the particular civil proceedings applies to entities indicated in Art. 358 of the Copyright and Related Rights Act. They acquire the aforementioned capacity upon the grant of the rightholder’s request to delete the orphaned work from the database.