Over the last few years, the lawyers of the Jabłoński Koźmiński Law Firm have given multiple expert and journalistic statements about reprographic fees.[1] Moreover, they have also prepared legal opinions submitted to public authorities as part of the ongoing legislative process on the proposal of the Professional Artists Rights Act and a proposal of the Professional Artists Act.[2]

Although the proposed statutory changes, which in my opinion are inconsistent with the EU law, unconstitutional, and very unfavorable socially, did not finally enter into force, their topic has returned owing to recent media reports of a District Court’s decision. According to the press, the court classified various multifunctional devices (including personal computers, laptops, iPads, iPods, mobile phones, and smartphones) as copying devices, which in consequence made them subject to device and media fees. Due to the decision, a claim of a collective copyright management organization, for over half a million PLN, directed against an entrepreneur producing electronic devices, was recognized as justified. Even though the full judgment is unfortunately not known, and despite the difficulty of getting to know what exact arguments were raised in the case based on media reports and considering that the commented judgment is not final as of now, it still raises questions and doubts.

Firstly, there are many controversies from the perspective of legal theory. Is it justified to interpret legal provisions, whose wording has not formally been changed, concerning, e.g.: tape recorders, video recorders, and photocopiers, in a manner that would be so far-reaching to cover smartphones? Does the method of purposive interpretation of legal provisions allow the court to replace the legislator and lead to effects as if the provisions had been amended? Finally, there are plenty of doubts taking into consideration the perspective of the intertemporal principle: not only did the trial allegedly last for a dozen or so years, but also the court assessed the claim from the distant past through the prism of current realities, which had significantly changed. Additionally, the verdict could result in the recovery of a significant amount of money from entrepreneurs dating back many years.

Regardless of the indicated dilemmas, it is difficult to ignore the very essence of the discussed legal institution or the concept underlying it, which is the recognition that the hypothetical possibility of copying a work for one’s use entitles a third party (organizations for collective management of copyright or related rights) to obtain compensation.

The issue is, of course, complicated, not only in the legal context but also in the moral and economic ones. There is no doubt, however, that a possible new judicial trend initiated by the commented judgment may lead to much more far-reaching effects than the legislative interventions planned in the past, resulting in a noticeable increase in electronic device prices for consumers.

[1] Among others see: K. Koźmiński, Opłata reprograficzna – kto zapłaci za projektowane regulacje? [in English: Reprographic fee- who will pay for the proposed regulations?], „Rzeczpospolita”, https://www.rp.pl/opinie-prawne/art50551-krzysztof-kozminski-oplata-reprograficzna-kto-zaplaci-za-projektowane-regulacje, access from: October 2, 2023; Opłata reprograficzna – duże wątpliwości prawników [in English: Reprographic fee—great doubts among lawyers], https://biznes.interia.pl/finanse/news-oplata-reprograficzna-duze-watpliwosci-prawnikow,nId,5312635, access from: October 2, 2023;  P. Szewioła, Rekompensaty dla artystów nie mogą finansować ich składek [Compensations for artists cannot finance their contributions], „Dziennik Gazeta Prawna” of June 9, 2021.

[2] Among others see: Opinia prawna z dnia 27 maja 2021 r. w przedmiocie oceny projektu ustawy o uprawnieniach artysty zawodowego [in English: Legal opinion of May 27, 2021 on the assessment of the proposal of Professional Artists Rights Act], https://biznes.newseria.pl/files/1097841585/dokument505727.pdf, access from: October 2, 2023.