The question of market power of collecting societies in relation to entities which make use of protected works is becoming a matter of increasing controversy in Polish law. This is reflected not only in academic debate, but also more and more frequently by the litigation cases being initiated by or conducted against collecting societies. The debate now involves antimonopoly aspects as well.

The current regulation of collective management issues – see Polish Copyright Act of 4 February 1994 (text: ISAP), including in particular the issue of establishing the remuneration due for use of works on various fields of exploitation, is not perfect. A recent ruling made by the Polish Supreme Court (case file number III CSK 36/16) indicates that the question of legal assessment of the relationship between a collecting society and entities making use of protected works, in particular in the context of mandatory administration by collecting societies between an author and user, is a difficult one.

A cassation appeal was filed with the Supreme Court by a collecting society, prior to which a radio broadcasting organisation instigated proceedings against a collecting society to determine the legal relationship between the broadcaster and the collecting society in light of termination by the collecting society of an agreement with the broadcaster with regard to use of phonograms managed by the collecting society.

Courts of consecutive instances found the notice of termination to have been served unlawfully, reaching this conclusion mainly on the basis of Polish copyright law. It is especially interesting to note that the termination by the collecting society of the agreement was also classified as an indication of abuse of a dominant position, rendering it ineffective under Article 58 § 1 of the Polish Civil Code (text: ISAP) in conjunction with Article 9 (3) of the Act of 16 February 2007 on Competition and Consumer Protection (text: ISAP).

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