A revolution in Polish copyright law?  The Sejm passed an amendment to the law

At its 16^th session, on 28 June, the Sejm adopted the Senate’s revisions to the amended Law on Copyright and Related Rights. The Act is a long-awaited (and much-delayed) implementation of the SATCAB II and DSM Directives. If the President signs it, the process of implementing these Directives in the EU can be considered complete.

Poland is the last country in the European Union that has not yet implemented the provisions of two directives relevant to copyright, namely Directive 2019/789¹ (SATCAB II) and Directive 2019/790² (DSM Directive). The delay in transposing the EU legislation is just over three years and is the subject of a complaint by the European Commission to the EU Court of Justice. The most important issue regulated by the new law is the guarantee of royalties to creators for the display of their works on the Internet, including on streaming and VOD platforms.

Revised amendment

The latest amendment to the Copyright Law began as a government bill in February 2024, and on 16 May  it was submitted to the Sejm, which adopted it in plenary session on 28 June following the work of the Committee on Culture and Mass Media. The bill underwent significant changes during its consideration and was adopted by the Sejm with revisions.

A long-discussed issue was the question of royalties for Polish artists (both film and music). In the end, the relevant provisions were included in the bill and, as a result, in the Act.

However, the final version of the amended Act does not include the provisions that were originally included in the bill, namely a rule that generative AI cannot make use of works under fair use unless the rightholder explicitly expresses his or her consent. The argument in favour of deleting this issue was the risk of “over-regulation”, going beyond the framework of the implementation of EU legislation.

However, there are no amendments to protect the interests of journalists and press publishers. This provoked immediate protests from the industry. It is impossible to give a clear answer as to how such a reaction from the public influenced the senators, but the fact is that on 24 July the upper house adopted the amendment with appropriate revisions. Finally, on 26 July, the Sejm adopted the Senate’s amendments to the amendment, which will now go to the President for his signature.

Right to dispose of publication

From the point of view of press publishers, the most important provisions are those that introduce a new category of exclusive right into Polish copyright law, i.e. the right of a press publisher to exclusive online exploitation of its publications by online platforms, which is governed by the new Section 3² in Chapter 11 of the Act on Copyright and Related Rights (Art. 99⁷ et seq.). The new related right to be enjoyed by press publishers includes the exclusive right to reproduce a press publication and make it available in such a way that anyone can access it from a place and at a time of their choice. This results in a rather narrow definition of the fields of use in which publishers will be able to exercise this right: reproduction and communication to the public in such a way that everyone can access the publication at a place and at a time of their choice.

The new related right is to apply without prejudice to the rights of authors and other rightholders. This means (according to Article 15(2) of the DSM Directive) that the publisher will not be able to effectively invoke this right against authors and other rightholders to prevent them from using their works independently of the press publication in which the works are included.

In Article 99⁷(4) of the amended act, the legislator has limited a new exclusive right, which does not include the right to prohibit the use of a work or the subject-matter of a related right contained in a press publication on the basis of a non-exclusive licence, if such use is made with the consent of the rightholder. This allows the authors of works contained in the press publication to effectively license their works to other users.

The new related right has been significantly limited in time, as it expires at the end of two years following the calendar year in which the press publication was first disseminated (Article 99⁸).

Press publishers with remuneration

The amendments added by the Senate introduce a procedure for determining the remuneration due to the publisher by the service provider (entity providing services by electronic means), or in fact big techs such as Meta, Google or Microsoft.

According to the new Article 99¹²(1), the remuneration should take into account circumstances such as the revenue that the service provider derives directly or indirectly from the reproduction or making available to the public of the publisher’s press publications (including, for example, advertising revenue), the type of press publications reproduced or made available to the public by the service provider or the duration of the use of a related right by the service provider.

Importantly, the Senate amendments introduce the possibility of mediation between the parties by the President of the Office of Electronic Communications (UKE). A request for mediation may be made by either party (press publisher or service provider) if no agreement is reached within 3 months of the submission of an offer to conclude a contract for the use of a related right.

The new regulations also allow the President of UKE to proceed with a joint application from more than one press publisher.

If mediation is unsuccessful, the parties may apply to the President of the UKE for a ruling on the amount of remuneration due to the press publisher (Art. 99¹⁵(1)). A ruling is also possible if a party does not participate in mediation or if the parties do not reach an agreement without mediation.

For the sake of completeness, it is worth mentioning that under the new regulations (Article 99⁹), journalists are entitled to 50% of the remuneration received by the publisher for the use of the said related right.

Artists in a winning position

An important change introduced by the amendment is the addition of new fields of use in points 5) and 6) of Article 70(2¹) of the Copyright and Related Rights Law. The first of the new provisions entitles co-authors of an audiovisual work and performers to remuneration for making the work available to the public in such a way that everyone can access it from a place and at a time of their choice, while the second entitles them to remuneration for rebroadcasts of works.

The first of these changes is important because it brings Polish copyright law into the 21st century. Until now, the Internet and streaming services have not been an area of use of audiovisual works for which authors and performers are entitled to remuneration. The newly introduced Article 70(2¹)(5) of the Act introduces the right to receive royalties for the use of audiovisual works on the Internet. This will enable Polish creators and artists to receive appropriate and fair remuneration from big tech companies.

The amendment envisages (Article 73a(1)) that parties negotiating an agreement to make an audiovisual work available to the public in such a way that anyone can access it at a place and time of their choice (i.e. as part of streaming services, VOD, etc.) will be able to apply to the Copyright Commission for mediation.

The second new field of use will give the right to receive remuneration for the retransmission of films or series despite the transfer of all rights in the artistic performances to the producer.

The provisions of the amendment can also be enjoyed by audio book authors, who have also been granted the right to equitable remuneration for making available to the public a fixation of an artistic performance in such a way that everyone can access it at a place and time of their choice (Article 86a). However, in this case, unlike for authors of audiovisual works and performers, the law does not provide for the compulsory mediation of collective management organisations.

Other equally important changes

The amendment to the Copyright Law, which is currently awaiting the President’s signature, also introduces a number of other equally important changes to the existing rules. One of the issues raised in the amendment is the recognition of online platforms as entities using works and objects of related rights posted by users. In accordance with the provisions of the new Section 2a in Chapter 3 of the Act, online content sharing service providers will be obliged to obtain consent (licences) from rightholders to make works available to the public. Otherwise, they will be liable for copyright infringement under Article 22b(1).

Also, a new definition of an additional online service and related rules for its provision by radio and television broadcasters have been introduced.

An important change worth mentioning is the unification of the rules for the granting of licences in the field of use consisting in rebroadcasting, regardless of the retransmission technology used. To this end, Article 21¹ of the law has been completely rewritten. Now, any retransmission, not only by cable operators, will be possible only on the basis of an agreement concluded with collective management organisation.

The future of copyright

As I mentioned earlier, the latest amendment to the Copyright and Related Rights Law is awaiting the President’s signature. This last step, which will hopefully be a formality, will complete the pan-European process of implementing the SATCAB II and DSM Directives.

However, this does not mean that the 1994 law will not need further amendment. In September, work is due to begin on a further amendment, which will cover issues such as technologies based on artificial intelligence (which were excluded from the law currently under discussion) or royalties for streaming music works.

The law passed by the Parliament in June-July brings Polish copyright law closer to the realities of the 21st century, but it is worth remembering that in the race between technology and regulation, the advantage is always on the side of technology. The legislator’s task in this case is to minimise delays so that legal realities are as close as possible to the needs of the market, especially at a time when technical and technological development is at least exponential.

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[1] 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 to retransmissions of television and radio programmes and amending Council Directive 93/83/EEC

[2] 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