A local retransmission dispute and a European standard
The case arose from a dispute between Oława Cable Television and the Polish Filmmakers Association concerning the use of audiovisual works and the amount payable. The Supreme Court of Poland referred a question about compensation calculated as a multiple of an appropriate licence fee. [1]
A separate Constitutional Tribunal judgment of 23 June 2015, SK 32/14, is relevant to the chronology: it rejected the provision in so far as it allowed three times the fee for culpable infringement. That ruling must not be conflated with the CJEU’s answer concerning twice the fee. [3]
What the Court held and what the Advocate General proposed
On 25 January 2017, the CJEU held that Article 13 of Directive 2004/48 did not preclude the national rule described, which allowed twice a hypothetical fee without proof of actual loss. This was an interpretation of EU law, not a finding of the particular licence rate payable. [1]
However, in paragraph 31 the Court noted that, in exceptional cases, twice the hypothetical royalty might exceed the actual loss so clearly and substantially that such a claim could constitute an abuse of rights prohibited by Article 3(2) of the Directive. [1]
Advocate General Eleanor Sharpston had proposed a stronger link between the lump sum claimed and the loss suffered, with judicial assessment of proportionality. Her Opinion is a separate reasoned document, not the operative part of the later judgment. Comparing the two reveals the interpretive question. [2]
Comparative method: three models that should remain distinct
The statutory starting point is Article 13 of the Directive: it distinguishes consideration of the appropriate aspects of loss from an alternative lump sum based on elements such as licence fees. It should be read alongside Article 3’s requirement of proportionality. [4]
Our proposed editorial exercise uses three separate worksheets. The first asks about loss: which revenue might have disappeared and which data can test that? The second reconstructs a hypothetical lawful transaction: what scope of use, period, territory and mode of exploitation need to be priced? Only the third applies the legally available calculation mechanism. Separating the worksheets avoids the apparent precision produced by multiplying an unsupported rate.
For a comparable rate, prepare a record for each contract: subject, date, market, duration, scope of rights and commercial terms. Then describe the differences between the comparison transaction and the use being assessed. We also propose recording an uncertainty range and explaining which assumption changes the result most. Similar work titles or an industry connection do not, by themselves, provide an economic argument.
The second exercise is doctrinal. Prepare a four-column table: issue, argument in the Opinion, answer in the judgment and limit of the inference. Mark separately the proposition necessary to the preliminary ruling and commentary about practice. Readers can then check whether a conclusion comes from the ruling, the Opinion or the writer’s assessment. This is a suggested way to read sources, not an additional CJEU holding.
Sensitivity analysis can test the calculation. In a hypothetical exercise, vary the period of use, scope of rights and unit rate one at a time, keeping the other assumptions constant. Identify whether disagreement comes from legal evaluation, input data or arithmetic. A scenario using only undisputed data can help too. It does not replace a claim or an expert opinion, but shows where certainty ends. This is an editorial tool for reading economic analyses critically; it is not attributed to the parties in this case.
A lesson for licence-risk analysis
Editorial inference: a lawyer or analyst should explain the calculation process as well as the final amount. A useful memorandum identifies the rate’s source, entitlement, assumed period, alternative calculations and disputed points. It supports discussion about evidence and assumptions instead of reducing negotiations to an exchange of two incomparable sums.
The study also encourages care when moving between categories of rights. A ruling on a Polish mechanism concerning use of copyright works does not replace an analysis of patent claims, trade marks or another country’s law. Each new matter requires a fresh assessment of the legal basis, its currency and the required proof. This is an editorial methodological inference, not an account of an additional procedural outcome.
Lessons from the analysis
- Distinguish actual loss, the hypothetical licence rate and the statutory calculation mechanism.
- Read the judgment and the Advocate General’s Opinion as documents with different functions.
- Make the assumptions behind a comparable rate and the uncertainty of the calculation explicit.
Limits of interpretation
A study of a historical copyright preliminary reference. It gives neither the outcome of any later national assessment nor a current rate payable in any matter. The proposed worksheets and tables are the editorial team’s own methodology.
Sources and further reading
- 1CJEU, judgment of 25 January 2017, Oława Cable Television ↗
C-367/15; ECLI:EU:C:2017:36; CELEX:62015CJ0367
Judgment, particularly the operative part and paragraph 31; official EUR-Lex text and metadata.
- 2Opinion of Advocate General Eleanor Sharpston, 24 November 2016 ↗
C-367/15; ECLI:EU:C:2016:900; CELEX:62015CC0367
Particularly paragraphs 47–48 and 55; reasoning distinct from the subsequent CJEU operative ruling.
- 3Constitutional Tribunal of Poland, judgment of 23 June 2015 ↗
SK 32/14; Dz.U. 2015 poz. 932
Officially published judgment concerning three times the fee; a separate national ruling.
- 4Directive on the enforcement of intellectual property rights ↗
2004/48/WE, art. 3 i 13; CELEX:32004L0048
Framework for proportionality and alternative approaches to determining damages.