JUDICIAL INCREASE OF REMUNERATION FOR A CREATOR’S WORK
We have already written on our blog about possible forms of cooperation between the creator and entrepreneurs who want to distribute the work created by this creator and obtain benefits from it. The parties may conclude either a license agreement or a contract for the transfer of proprietary copyrights. In each of these contracts, it is necessary to indicate the amount of remuneration due to the author or a clear reservation that the author transfers the rights to his work free of charge.
CREATORS SELL THEIR RIGHTS CHEAP
Often times, creators sell their rights for a small fee, then find out that the rights buyer has commercialized the work with great success and has made huge profits from it. Fortunately, the Polish Act on Copyright and Related Rights allows the creator to obtain a judicial increase in the remuneration previously agreed by the parties. The legal ground of that right is Article 44 of this Act, which has not been used too often in Polish judicial practice. It seems that Polish creators do not know about their rights after concluding a license agreement with a contractor and do not use the services of patent attorneys and legal advisers in order to increase their profits.
WHEN WILL THE COURT INCREASE WAGES?
A judicial increase in remuneration is possible when the disproportion between the remuneration of the creator and the benefits of the acquirer of economic copyrights or the licensee is gross. This means that not every imbalance between the creator’s remuneration and the buyer’s benefits will be an effective basis for claiming remuneration. The disproportion will then be glaring when it is visible at first glance. Of course, this is a premise examined by the court individually in each case. It is not possible to determine a top-down measure that would allow to check whether the remuneration is grossly understated in relation to the benefits of the other party. Importantly, the fact that the parties applied the rates commonly used on the market at the time of concluding the contract does not automatically mean that the creator will not be able to demand an increase in his remuneration if the work turns out to be a bestseller. This is due to the fact that a glaring disproportion may appear both at the moment of concluding the contract, but it may also arise after its execution – after the book is released, the film is screened or the computer program is sold.
EXAMPLE OF APPLICATION OF THE BESTSELLER CLAUSE
Judgments in cases of increasing the remuneration of the creator can be a certain point of reference for establishing the practical meaning of the concept of “gross disproportion” between remuneration and benefits.
In one of the recent judgments, the Court of Appeal in Katowice (case I ACa 163/19, judgment of 2019-10-23) found that the remuneration of PLN 8,500 for the translation of a book is grossly low, when the purchaser of the rights to this translation obtained income within PLN 13,000,000. The Court of Appeal in this case decided that the remuneration should be increased 5 times, which means that the final amount of the remuneration due to the creator was as much as PLN 42,000.
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