'Bestseller clause' a dead regulation? UG Young Researchers Series


Aleksandra Górska-Jankowska. Fot. Alan Stocki/UG.

It is not easy to predict the commercial success of a work. Therefore, it happens that the disproportion between the remuneration of the creator and the benefits of the copyright purchaser is crushing. What is the 'bestseller clause', and why is it so rarely used? In the next episode of the series 'Young Scientists of UG', we discuss this with Aleksandra Górska-Jankowska, a doctoral student in legal sciences from the Doctoral School of Humanities and Social Sciences at UG.

Elżbieta Michalak-Witkowska: - What do you do for your doctoral thesis?

Aleksandra Górska-Jankowska: - The issue of authors' and performers' remuneration, and in particular the mechanism commonly referred to as the 'bestseller clause', i.e. Article 44 of the Copyright and Related Rights Act, according to which 'In the case of gross disproportion between the author's remuneration and the benefits of the acquirer of author's economic rights or licensee, the author may demand an appropriate increase in remuneration by the court'.

It operates in Polish law and the law of many other countries and is applied in the case of a transfer of the author's economic rights by the author or the granting of a licence to the work.

- So we are talking about a situation where a writer, for example, transfers the rights to his book to a publisher or a composer to a music label.

- Exactly so. Creators often transfer their rights or license the work because that is the creative market. In such a situation, the author of the work has several options when it comes to payment: for example, they can agree on a percentage of future profits or a specific one-off payment. However, it happens that the rights buyer generates enormous profits by using the work. Often the original amount received by the creator is disproportionate to the profits of the purchaser.

- There are no provisions to regulate this issue and protect creators in the exploitation process. No increase in remuneration can be demanded.

- Yes, there are, and they have been functioning in Poland for many years; these regulations are contained in the Copyright and Related Rights Act. However, hardly anyone knows them, leading some to claim that this regulation is dead. The question arises why? Where is the mistake? And this is what I would like to get to in my dissertation.

- So you want to know why dead regulations are created, regulations that do not work?

- Yes, and more specifically, to understand the problem. I'm investigating the legal system, seeing if something in the legal regulation itself causes ambiguity or difficulty in applying it.

- And why did you take up the subject of copyright in particular? Are you involved in the artists' community?

- Apart from being a lawyer, I am also a pianist. In a way, I reconcile these two seemingly contradictory backgrounds. I also co-found Smooth Sail Music, where we advocate for the creative community. As a lawyer there, I work with artists, helping them, for example, to create and negotiate contracts. So I see what this environment looks like and what problems young creatives face when confronted with the brutal reality. I see various issues in the creative industries market, and there often needs to be more legal awareness.

Addressing this topic also coincided with various developments at the EU level. There, too, the problem of contractual imbalance has been recognised because it does not only affect Poland but the whole world.

- Can you give specific examples of how regulations do not necessarily help creators?

- Of course, there are many such examples. The most famous one is probably the dispute between Andrzej Sapkowski and CD Project Red - the creators of The Witcher game. Many years ago, the writer transferred the rights to adapt the book series to them for a one-off fee. Apparently, the writer did not agree to a percentage solution and demanded a specific amount, not believing in the game's success (based on media reports, the amount was PLN 35,000). It turned out that after the game's commercial success, this amount was grossly disproportionate to how much the creators had earned from it. The writer's lawyers demanded an additional PLN 60 million from CD Projekt Red, citing precisely Article 44 of the Copyright Act, i.e. the 'bestseller clause'.

- This example shows that it is difficult to predict the commercial success of a work.

- Yes, but it is also difficult to say, staying with this example, at what point the storyline is behind the success of a game and at what point other factors, such as game mechanics and marketing efforts. After all, by making this game popular, it has also strengthened the popularity of Andrzej Sapkowski's books.

Another example, no longer from Poland, concerns the creators of comic books from the Marvel Comics universe. Many of them, years ago, created comic book characters who are now key figures in the Marvel Cinematic Universe. Currently, films featuring Marvel characters are the No.1 films in our cinema repertoire. Many times, film adaptations of the original comic book earn billions of dollars, while the original creators, who created not only the characters themselves but also the storylines that became the basis for the screenplay, received salaries of, say, $130.

- The principle of freedom of contract does not help claim one's own. What is binding is what the parties have agreed to.

- This is why the 'bestseller clause' is an exciting regulation. Indeed, only some agree that such an exception to the principle of freedom of contract should occur.

- What methodology do you use in your research?

- Within the framework of my research, I use the methodology typical of the legal sciences, i.e. the dogmatic-legal method, the historical method and the comparative method with elements of economic analysis of law.

- What are the first conclusions of this research?

- In my work, I will compare how this regulation works in Poland with how it works in other countries. There are countries where this institution has been functioning for years and works better than in Poland. For example, it is pointed out that in German law, a change in the regulations led to better protection of authors. This was mainly a change related to the premise of 'gross' disproportion, which is difficult to prove. In Poland, it is still the disproportion between the remuneration of the author and the benefits of the acquirer of the author's economic rights or the licensee that has to be 'gross'.

- But what does this mean? An intensely subjective term. If the creator gets PLN 5,000 and his exploitation contractor gets PLN 100,000, is that gross or not?

- That is for the court to decide. It is very evaluative. That is why the words 'gross' were changed to 'substantial' in Germany. And this has already made a difference. In some countries, on the other hand, a specific percentage threshold is indicated. There are, therefore, many possibilities for approaching the 'bestseller clause' itself.

- Hopefully, the issue you have raised will have a response in the legislative process. Which I sincerely wish you and the artists.

- Even if the legislation does not change, I hope that the mere awareness of creators of the regulations already in place will prove sufficient to enter into negotiations, apply to buyers and attempt to increase their remuneration out of court.

 - Thank you for the interview.

Elżbieta Michalak-Witkowska / Press Office UG