When can an entrepreneur publicly play radio or television on his premises?

According to Article 24, Section 2 of the Copyright and Related Rights Act, an entrepreneur has the right to publicly use radio and television sets owned by them as part of their business activity, if this is not connected with obtaining financial benefits. Otherwise, the entrepreneur will be required to sign a license agreement with organizations for the collective management of copyright or related rights. This is a statutory license, which is a derogation from the principle of paid use of copyright property rights. The condition for using it is the integrity and simultaneity of the broadcast with the original broadcast. “Signals from the original broadcast must therefore be received using a collective antenna, and then amplified and transmitted by cable. However, collecting signals and transmitting them at a later time or introducing a selection in the program is no longer considered a permitted activity; it therefore goes beyond the framework of permitted use.” (Copyright prof. dr hab. Janusz Barta, 2008, CH BECK, p. 449). It should be emphasized that the license provided for here does not cover the playback of records or cassettes.

Who bears the burden of proof that the public performance of music is not associated with financial gain?

Article 24 section 2 of the Act does not provide for a presumption of the lack of financial benefits resulting from the reception of, among others, a radio programme in a publicly accessible place. In its judgment of 18 November 2004 in case V CK 243/2004, the Supreme Court assumed that the burden of proving that an entrepreneur does not derive benefits from the public performance of music rests with the owner of these devices. Therefore, it must be proven that playing music, e.g. in a shop, pub or hairdressing salon, does not influence consumers’ decisions and thus does not even have an indirect effect on the turnover of the facility.

What circumstances should be taken into account when assessing whether an entrepreneur derives financial benefits from the public performance of music?

The construction of the cited provision of the Act comes down to the interpretation of the concept of obtaining financial benefits and makes the necessity of concluding an agreement with collective management organizations dependent on its occurrence. The following circumstances will have a significant impact on the occurrence of this premise: the nature of the business activity conducted, the type of equipment from which the music is played, the method of playback, the frequency of public playback, or the location in the premises where the equipment is located.

When do situations arise in which the reception of works broadcast in a radio programme does not have even an indirect impact on the conduct of business activity and the achievement of financial benefits therefrom?

The Court of Appeal in Katowice, in its judgment of 14 March 2008 (file reference I ACa 102/08), took the position that the possibility of proving the lack of financial gain cannot be an empty record and that there may be situations in which the reception of works broadcast in the radio programme does not even indirectly affect the conduct of the business. The defendant presented evidence indicating that the described reception of works broadcast in radio programmes was not related to the conducted business and that there was no possibility of obtaining any financial gain from it. In this case, the defendant claimed that in the premises run by the company, which had the nature of a canteen, there was a music set in which the tape recorder and CD player were broken and that it was mainly used by him as a radio. Radio broadcasts were received irregularly, exclusively for his needs and those of the employed staff. The lack of an antenna and the low quality of the receiver made it impossible to play the programme for consumers. Using it had no impact on the turnover of the premises. In addition, the most frequently played station was a station broadcasting religious programmes.
In another case, the Court of Appeal in Kraków, in its judgment of 4 April 2000, in case I ACa 239/2000, found that “it cannot be assumed that in a situation where listening to music is a secondary purpose resulting from the intention to purchase a record or cassette containing a recording sought by a customer of a music store or to check whether the record or cassette is not technically defective, we are dealing with playing them in public, within the meaning of the provisions of the discussed act. A relatively short stay of a customer in order to purchase a record or cassette with a music recording cannot be treated as receiving a music recording in public. Inspections carried out in the defendant’s store showed the presence of customers in the number of 2 to 7 people, and the evidence collected in the case does not indicate that their interest went beyond the mere desire to purchase the goods available in the store”.