Do YouTube channels have to be reported to KRRiT?

Do youtubers need to register for VOD broadcasters? Who needs to pay 1.5% on PISF? Has the government introduced a tax on YouTube (and TikTok)? Does the new law apply to platforms or channels? What is it all about?!?! These and similar questions have flooded Twitter, web portals and our creator support box lately. Various articles have also appeared on the net - unfortunately in many cases misleading and generating more confusion than helpful advice?

That is why, on the basis of our direct conversations with KRRiT, analysis of regulations by our law firm and conversations with other agencies, we decided to share what we know about the topic (and what we do not know), what we have already communicated to our creators, and what we would like to organize here and convey in a fairly accessible (and therefore abbreviated) form. We add all sources and legal records at the end of the entry.

(edit: the entry will be supplemented if new information appears, and if we also have amateurs of law among our readers — we will be grateful for any comments and possible interpretations of these most obscure laws?)

Why the confusion?

Some time ago, the EU adopted an audiovisual directive to which the Member States must adapt their rights (so, first of all, the first news to be verified — it is not the government, the KRRiT or another Polish authority that is responsible for this — KRRiT is responsible for maintaining the register). As a consequence of these changes, the so-called Broadcasting Act was amended, according to which in Poland from November 2021 there is an obligation (previously it was voluntary) to enter in the register of all broadcasters of audiovisual content on demand (VOD). Existing broadcasters have 3 months to do so from November 1, 2021 — i.e. until February 1, 2022.

Is Youtuber a VOD?

According to the current regulations, YouTube channels that meet certain criteria should also be considered VOD broadcasters:

are publicly available (that is, basically, all youtubers)

the owner has an influence on what is published there — he maintains the so-called catalog (jw.)

they run a channel as part of a business activity (which is not a registered sole proprietorship, but an organized, repetitive activity that earns money — do not ask, however, what does “organized” or “repetitive” mean and what is certainly the activity of gos. or rather not, because it earns rarely and a little - this, as far as we know, is not clearly defined anywhere? ).

Quote from the KRRiT message: If the above criteria are met, services provided using video-sharing platforms, e.g. channels offered on YouTube, may be considered on-demand audiovisual media services.

In other words, almost any YouTube channel that is in the monetization program (AdSense), regularly publishes and earns money can be subject to these records.

(Theoretically, even accounts on TikTok that participate in advertising campaigns are subject to this... but this thread already seems so abstract that maybe we will leave it for another post...).

What threatens for failure to report?

Theoretically and in accordance with the law, the penalty for not entering the register can be a fine of up to approx. 120 thousand PLN. Does KRRiT plan to punish immediately all those who do not report, and according to the above provisions they should? From our direct conversations with KRRiT representatives, it appears that RATHER not... They are open to discussion, want to clarify the guidelines, they realize (at least now after our conversations? ) from the scale of the whole phenomenon (we estimate that in Poland there are about 40,000 YouTube channels participating in the monetization program, so potentially meeting the criteria), they talk about warnings rather than penalties, etc. We also have no idea how they should reach out to whom, for example, a given channel belongs to and how to send such a recommended shipment to its owner (?).

However, openness and verbal declarations (which we greatly appreciate, because on their basis we are conducting further discussions with the Council and jointly intend to clarify all unclear issues) do not change the current law — and according to it, KRRiT has the possibility to impose financial penalties for non-compliance with the obligation to enter in the register and if it wishes, it can use it.

And isn't that just about platforms, that is, YT itself?

Other regulations apply to platforms, others to broadcasters operating on platforms — which is clearly spelled out in the law. The Directive covers both. Articles or comments in which the author claims that changes only to YT, FB, Players, etc. and not channels - do not comply with the current legal status.

Obligation to register vs obligations incumbent on VOD providers

This is a very important difference, and unfortunately in many comments and articles these two things are completely mixed up! Another is the obligation to register (the obligation to enter the register of YT channels that meet the above criteria), and the obligations imposed on the largest VOD providers — there are many exemptions and exceptions to these obligations and these regulations are still being worked on.

In other words — all VOD providers (including YT channels operated as part of gosp.) are registered; and on the basis of separate regulations, these largest will have a number of additional obligations — most of them may not cover YT channels.

What obligations does the law impose on VOD broadcasters?

We will not describe them in detail (there will still be time for this, possibly the sources can be found below). In a nutshell, they concern:

recognition of commercial messages (i.e. similar to UOKiK — placements, sponsored publications, etc. must be clearly marked and easily recognizable) and here we discuss with both KRRIT and UOKIK how these markings should look to be both consumer- and youtuber- friendly 😉

a ban on advertising of certain products (e.g. alcohol or tobacco products);

protection of minors (e.g. by marking appropriate age categories; it is possible that YT will introduce additional designations in the near future)

Promoting European broadcasts*

facilities for people with disabilities (there is still a lot of discussion here, who should cover this obligation at all, what kind of facilities it should be, etc.)

reporting to KRRiT and submitting financial statements or tax returns (you can find the form here. Please note that the report must be submitted by March 31, 2023. Here is a sample of how to complete such a report.

and (this is an obligation under the Cinematography Act and this provision raises the most emotions and misunderstandings):

fees in the amount of 1.5% of the revenue obtained from commercial transfers (i.e. advertising, placement, cooperation with brands on the channel, etc.) to the Polish Institute of Film Art*

*VERY IMPORTANT: Both the promotion of European broadcasts and the 1.5% fee are exempt:

micro-entrepreneurs (i.e. those who employ less than 10 people and have a net turnover of less than 2 million euros per year)

or

channels whose number of users of all content on the channel a year earlier did not exceed 84 295 (this is 1% of people with broadband Internet access in PL; do not ask on what basis KRRiT wants to verify the number of unique users reached a given channel a year earlier - it is unknown).

That is, if you do not have more than PLN 9 million in turnover during the year (which of course we very much wish!) — this is probably not too much to worry about when it comes to obligations imposed on VOD providers (it is still necessary to enter in the register according to the law).

What's next?

If you have any questions or concerns, write to us! We will help you as best we can.

Sources:

the Act of 29 December 1992 on radio and television broadcasting (Journal of Laws of 2020, as amended, known as the “RTV Act”);

Act of 11 August 2021 amending the Act on Radio and Television and the Act on Cinematography (Journal of Laws of 2021, item 1676);

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination and certain provisions laid down by law, regulation or administrative action in the Member States relating to the provision of audiovisual media services (Audiovisual Media Services Directive);

Directive 2018/1808 of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in the Member States relating to the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changes in the market situation;

KRRiT message on the obligation to apply for entry to the lists for VSP and VOD providers dated 12.01.2022: https://www.gov.pl/web/krrit/obowiazek-zgloszenia-o-wpis-do-wykazow-dla-dostawcow-vsp-i-vod

KRRiT communication on entities required to make an entry in the list of audiovisual media services on request https://www.gov.pl/web/krrit/informacja-przewodniczacego-krrit-w-sprawie-obowiazku-wpisu-do-wykazu-audiowizualnych-uslug-medialnych-na-zadanie