The Parliament decided that providers of VOD services will pay 1.5 percent of their revenues as contributions to the PISF (Polish Film Institute) and those funds will be used for production of films, organization of festivals and for other film events. The relevant amendment to the Cinematography Act is part of the Act implementing the protective activities connected with the SARS-CoV-2 pandemic. This is a partial implementation of Article 13 of Directive 2018/1808 on audiovisual media services so it will remain in force after the pandemic is over
Starting from July 2020, providers of audiovisual media services will co-finance the PISF – as television broadcasters, cable and satellite operators, film distributors and cinema owner have been doing for years. Only microbusinesses and niche services will be exempt from those payments. A vital novelty of the regulation is that it also covers foreign service providers offering their programming to recipients in Poland. For them, the 1.5-percent contribution will be calculated on the basis of revenues earned in Poland’s market.
The bill was presented with a forecast of the expected annual inflow of contributions to the PISF. As estimated by the European Audiovisual Observatory, in 2019 the proceeds earned by operators were: Netflix – nearly 430 million zloty, Ipla (Polsat) – 268 million zloty and Player.pl (TVN) – 102 million, Amazon – 44 million zloty and Cda.pl – nearly 39 million zloty. So, if the new regulations are fully applied, the PISF will receive additional proceeds of 15 million zloty a year. This will be great support for that institution in the time when the cinemas stay closed until nobody knows when and the advertising revenues of television broadcasters are going down.
However, as aptly mentioned by Jacek Bromski, President of the SFP in his letter to the Minister of Culture and National Heritage, "streaming services and VOD operators are privileged in Poland nonetheless. Unlike the other participants in the media market, they are the only group which does not have to pay royalties to authors and performers (for example actors). Television broadcasters, cable and satellite operators, DVD distributors, cinemas, hotels, all those entities pay remuneration to authors and performers via collective management organizations. Online services are excluded from such regulations in Poland – they pay no royalties".
This discriminatory environment, in which VOD providers are privileged as compared to the other market participants, should change soon. EU Directive 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market ensures authors fair and stable remuneration for online use of their works. The time for implementation of its regulations ends in June 2021, but the terrible situation of the filmmaking industry haste is strongly recommended. The more that in the vast majority of the Member States those regulations have already been implemented or the relevant legislative activities are progressing fast.
The Wirtualne Media portal reported that in April 2020 Netflix doubled its results in Poland year over year and reached a record high audience. And the 8 most popular VOD platforms increased the number of users by 18 percent and the number of views by 50 percent as compared to April 2019. And this success was certainly supported by online distribution of Polish films: Sala Samobójców (Suicide Room), Hejter (Hater), 365 dni (365 days), W lesie dziś nie zaśnie nikt (Nobody Sleeps in the Woods Tonight) or Bad Boy. Today, as never before, the time has come to implement necessary legislative solutions that will directly support the authors. When contributions to the PISF have finally materialized, it is worth focusing on Article 18 of Directive 2019/790, according to which authors and performers should earn remuneration that is appropriate and proportionate to profits from particular fields of exploitation. In Poland, this regulation is already, even if only partly, implemented in Article 70 of the Copyright Act. However, Article 18 will be fully implemented when "appropriate remuneration for the author of an audiovisual work" is supplemented by the "online" field of exploitation. This will open the way to "royaltization" of streaming and VOD platforms, and other services, which carry out the exploitation of creative works and make huge profits on them while not incurring adequate costs (YouTube and Facebook).