ZAiKS, when hindering authors’ right to terminate contracts, might have restricted competition, as stated the President of UOKiK when issuing the decision based both on Polish and Community law. The association committed to change the questioned clause

ZAiKS (Union of Stage Artists and Critics) is the oldest and the largest organisation providing collective management and protection of copyright. Apart from other organisations operating in Poland, it grants licences for the use of works, controls the method of their use as well as collects and distributes funds obtained from users. At the same time, ZAiKS is the only organisation which collectively manages copyright with regard to musical works and to works combining music and lyrics. Therefore, it has to observe the prohibition concerning the abuse of a dominant position on the market.

The practice questioned by the President of UOKiK relates to artists, both members and non-members of the association. As it has been revealed in the course of the proceedings, pursuant to Resolution of the Board of ZAiKS, they could resign from vesting copyright in the organisation upon six months’ notice, effective as of the end of the calendar year. This means that the period between the notice and termination of the contract could have counted in certain cases even a year and a half. In the opinion of the President of UOKiK, such a long term of notice might have restricted competition on the market of collective management of copyright to musical works and to works combining music and lyrics. The questioned rules of authors’ resignation from ZAiKS services restricted their choice of other methods of managing their rights within a reasonable period, should they consider ZAiKS to operate inefficiently, or should an entity appear that would offer better conditions than ZAiKS. Such a long term of notice could have discouraged authors from concluding an agreement with other entities managing copyright and potential competitors from entering the market on which the association operates.

In the course of the proceedings, ZAiKS committed to change the questioned clauses through reduction of the term of notice to three months, effective as of the end of semester of the calendar year. The association should fulfil this commitment by 31 December 2010.

The President of UOKiK stated that practice of ZAIKS could have infringed not only provisions of the Act on competition and consumer protection, but also EU legislation (Article 102 of the Treaty on the Functioning of the European Union) due to its impact on trade between Member States. The questioned clauses might have hindered undertakings operating in other EU Member States from managing copyright of Polish authors. Therefore the proceedings against ZAiKS were carried out also on the basis of the EU provisions and the final decision was consulted with the European Commission.

It should be pointed out that the decision on ZAiKS is the eighth decision issued by the President of the Office both on grounds of national and EU legislation. At the same time it is the first decision where obligation was imposed on an undertaking on the basis of both national and EU law. Also the European Commission has the right to issue the so-called commitment decisions; the latest concerned British Airways, American Airlines and Iberia airlines.

Additional information for the media:
Małgorzata Cieloch, Spokesperson for UOKiK
Department of International Relations and Communication
Pl. Powstańcow Warszawy 1, 00-950 Warszawa
Tel.:(+48 22) 827 28 92, 55 60 106, 55 60 430
faks (+48 22) 826 11 86
E-mail: [SCODE]bWFsZ29yemF0YS5jaWVsb2NoQHVva2lrLmdvdi5wbA==[ECODE]