There is no doubt that Polish copyright law needed to be updated to reflect new technological developments and to be aligned with EU legislation. Albeit long after the deadline, the Polish legislator has now taken measures to adapt provisions of two EU directives into Polish copyright law. The introduced amendment has now been referred to the President and awaits his approval and signature.
Major delay in the implementation
The amendment to the Act of 4 February 1994 on Copyright and Related Rights (“Copyright Act”) is a result of implementation of two EU directives: the Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (“SATCAB II”) and the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (“DSM”). The deadline for implementation of both directives into national regulations of the EU member states was set at 7 June 2021, however Poland is still lagging behind. It was not until mid-2024 that the Polish government initiated the legislative procedure in order to align copyright regulations with EU requirements. The delay has sparked great concerns within the Polish artistic community, which has been awaiting proper implementation of EU legislation for several years.
Significant changes to the Copyright Act
The forthcoming amendment will bring substantial changes to the rules governing protection of the rights of artists, performers and creators. Current regulations of the Copyright Act do not reflect the technological developments, which introduced new fields of use of artistic works in the digital dimension. Most importantly, the current Copyright Act lacks detailed provisions regulating exploitation of works in the form of online sharing and rules on remuneration (royalties) for such use.
In this regard, the amendment secures rights of creators and performers to appropriate remuneration for making their work available to the public on the Internet.
Also, new regulation grants publishers the right to exclusive online exploitation of their press publications by online platforms that are classified as “information society service providers”. This right covers two following fields of use: reproduction and making available to the public in a way that anyone can access the publication at a time and place of their own choosing. Moreover, the amendment provides that authors of press publications will be entitled to 50% remuneration from publisher’s royalties.
Additionally, some provisions introduced in the amendment concern fair use. First of all, reproduction of works by educational and scientific institutions for teaching and scientific purposes will now be limited to 25% of the volume of a larger works, such as books or textbooks. Such use must be carried out at the responsibility of the institution and be of non-commercial character. The only parties entitled to access such materials are students and those who teach or carry out research activities at the institution or body involved.
The introduction of a general right to reproduce works in relation to text and data mining (TDM) is another novelty. The right holder may prohibit such fair use by stipulating otherwise. However, such objection does not apply in cases when such reproduction of works is carried out for the purposes of scientific research that benefits universities, research organizations and cultural heritage institutions. What is more, some educational and cultural heritage institutions, as listed in the amendment, will be able to reproduce the works permanently in their collection for preservation purposes, as long as such use is aimed at achieving a financial benefit and does not lead to the enlargement of the collection.
Controversies
Several groups expressed their concerns during the legislative procedure. The artistic community responded negatively to the Ministry of Culture’s decision to abandon a provision that would limit the scope of TDM by excluding the possibility of training generative artificial intelligence algorithms on copyrighted works. The government justified its decision by indicating that such provision would go beyond the scope of DSM and could potentially raise numerous interpretative doubts. The main concerns regarding TDM are the deterioration of an already difficult market situation of artists and creators and the lack of consent to use their works to 'train' algorithms. It is to be noted that, in terms of the second issue, the amendment itself already grants the previously mentioned option not to allow for the works to be explored by algorithms and used to generate content.
Another concern that is raised is the correct transposition of the SATCAB II Directive in terms of definitions. At issue here are the definitions of terms 'rebroadcasting' and 'broadcasting'. There are views that these terms have been implemented in a manner inconsistent with the wording of the Directive. The Polish legislator decided that the distribution of programmes by cable and satellite pay-tv distributors is a single act of use of a work, but divided into two fields of use. On the other hand, SATCAB II does not divide this mode of distribution into two separate fields of use, but states that it is a single process - broadcasting - in which there are two entities involved and each of these entities is responsible for its share in the broadcast. This discrepancy, may be crucial at the enforcement stage of the rights of creators and performers.
The most controversial by far are the aforementioned rules on publisher’s remuneration. According to the publishers, the initially proposed regulations did not protect their interests sufficiently, as it provided no tools that could facilitate the enforcement of their rights. The beneficiaries of the regulation expected the Polish legislator to authorize a chosen state entity to assume an arbitration role in cases where negotiations between a publisher and an online platform are not effective.
Following numerous heated debates, a solution to that issue seems to have been found. The Senate considered the views of the publishing community and introduced a new regulation that provides publishers with a more effective way of asserting their rights against big tech platforms. In the event of unsuccessful negotiations between the publisher and the platform, either party will be able to apply to the Head of the Office of Economic Communications for mediation. Such mediation may last no longer than 60 days, unless the parties agree otherwise. If no settlement is reached, either party to the mediation may apply to the Head of the Office of Economic Communications for a ruling on the amount of remuneration due or the manner in which it should be determined. A party may oppose such a ruling within 14 days from the date of its service, such objection will be examined by a court in an accelerated procedure. Despite the newly adopted procedure seemingly being a middle ground, its introduction has sparked further controversy as the publishers had originally wanted the Head of the Office of Competition and Consumer Protection to assume that role.
Next steps
The provisions introduced in the amendment will enter into force 30 days after the date of its publication. Overall, despite the aforementioned controversies, the proposed changes are a step in the right good direction that might ensure greater coherence and completeness of the Polish copyright regulation.
