EU broadcasters targeting Poland expected to pay 1.5 per cent of revenues to Polish Film Institute

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The Ministry of Culture and National Heritage published a draft law on 7 September 2020 amending the Broadcasting Act and the Cinematography Act. The aim of the new act is to implement Audiovisual Media Directive 2018/1808 in Poland. However, the draft also changes the Cinematography Act by introducing new payment obligations on broadcasters with the registered office in European Union countries other than Poland.

The Cinematography Act of 30 June 2005 imposed financial contribution obligations to be paid to the Polish Film Institute (the main funding body supporting cinematography in Poland) for the following Polish entities:

  • entities running cinema operators
  • film distributors
  • digital platform and cable operators
  • broadcasters of television programs.

The Act of 14 May 2020 on the amendment of certain acts in the area of protective measures in connection with the spread of SARS-CoV-2 virus, amended the Cinematography Act and introduced similar payment obligations towards on-demand audiovisual media service providers. Those new payment obligations apply to local on-demand services providers and on-demand service providers with registered office in other EU Member States.

The above mentioned draft of 7 September 2020 extends payment obligations to broadcasters with registered office in other EU Member States.

Broadcasters shall make payments of 1.5 per cent of their income from advertising, teleshopping and sponsored programs or the income derived from fees collected directly from subscribers for access to broadcasted programs, to the Institute, if that revenue is higher in a given accounting period. Broadcasters with registered offices in other EU Member States will be assessed for these dues on the basis of their revenues achieved in Poland.

Payments are to be made on a quarterly basis, directly to the Polish Film Institute. The levy should be treated as a tax deductible cost for Polish Corporate Income Tax purposes.

The draft also defines exclusions from the new payment obligations. The payment obligation will not apply to broadcasters:

  • who are micro-entrepreneurs; a micro-entrepreneur means an entrepreneur who has met all of the following conditions in at least one of the last two financial years: an average annual staff employment rate of fewer than 10 employees and achieved annual net turnover on sales of goods, products, and services, and from financial operations, in total not exceeding the PLN equivalent of EUR 2 million, or if the total assets in the entrepreneur's balance sheet at the end of one of those years did not exceed the PLN equivalent of EUR 2 million;
  • with television viewer figures not exceeding 1%; it is not clear how broadcasters should calculate their viewer figures (e.g. should they take into account the last quarter/last year).

According to the draft these payment obligations of foreign broadcasters should come into force on 1 January 2021.

The proposal has been published on the government’s website and now it is under review by various public authorities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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