Copyright – draft amendment to the regulations

On 20 June, the government’s draft amendment to the copyright law was published. The changes have long been awaited by the creative circles and copyright lawyers and can be described as strategic. The largest amendment in several years is to finally introduce Polish copyright law into the twenty-first century.

The bill is to adapt the Polish copyright law regulations to the content of two EU directives. The SATCAB Directive has ensured that the functioning of the Union’s internal market is improved by wider distribution of television and radio programmes from other Member States. On the other hand, the DSM Directive, introducing new forms of fair use and a new right of press publishers to use their publications online, mainly concerns the use of works in the broadly understood digital sphere.

Most of the proposed provisions contained in the government bill implement the European acts.

Rebroadcast of songs – there is an implementation, but defective

The bill authored by the Ministry of Culture and National Heritage extends the scope of permitted rebroadcast of works by removing the reference to “cable network operators” and to rebroadcast of works in cable networks, thus extending the permitted scope of rebroadcast and thus contributing to “technological neutrality”. At present, rebroadcasting is not limited to cable or satellite broadcasting, but also takes the form of digital terrestrial transmission, mobile or closed networks based on the IP protocol or on the open Internet. Thus, all rebroadcasters were equated in their situation in the draft amendment. Any rebroadcaster, regardless of the technique used, will be subject to mandatory mediation by a collective management organisation in obtaining a licence.

An important change, although in my opinion inconsistent with the letter of the SATCAB Directive, is the extension of definition of rebroadcasting and covering the so-called direct injection. What is the error? Direct injection in the EU law is treated as a ‘technical’ act, distinct from rebroadcast, which is a secondary rebroadcasting of a primary broadcast intended for general reception. An entity providing “technical means”, as it follows from the case law of the CJEU, is not considered to be involved in the communication of content to the public. Moreover, within the meaning of the Directive, rebroadcast is intended for reception by the general public, whereas the signal transmitted under direct injection is not available to the public.

Therefore, in my opinion, the fact that the Ministry of Culture and National Heritage recognized direct introduction as rebroadcasting seems strange to say the least. I am also not convinced by the justification for the draft, in which we read that “in practice, the dissemination of programs […] by way of ‘direct injection’, is very similar to rebroadcast and economically makes the same sense”. It should be remembered that direct injection is only a technical act of signal transmission, and not the distribution of a work.

Making the online content available

The government bill includes provisions implementing the controversial Article 17 of the DSM Directive, which in 2019 Poland appealed (unsuccessfully) to the CJEU. In simple terms, the new rules apply to online content providers (“online content sharing service providers”) and require them to proactively monitor the content made available for possible infringement of economic copyrights.

The distribution of works online by these entities will be possible only with the consent of the rightholder (unilateral declaration of will of the rightholder, license agreement). In the absence of consent, online content providers will have to demonstrate that they have exercised the utmost care to obtain such consent.

The provider will be obliged to carry out “preventive actions” consisting in “ensuring the lack of access” to works for which the rightholder has provided the provider with appropriate information allowing their identification. We are talking all the time about a situation in which the provider has not obtained the consent of the rightholder. This will apply in particular to cases in which works are placed on a given website by users. Of course, in the case of websites with a large database of works, this will require the use of certain algorithms that allow for automatic verification.

In my opinion, the Ministry’s fears expressed in the justification that this may constitute a kind of “censorship threatening freedom of speech and access to information” are unfounded.

In addition, the Internet service provider will apply the so-called “notice and take down/stay down” procedure, which consists in the fact that once removed by the provider at the request of the rightholder, the content will not be redistributed.

It does not seem that the regulations in this form constitute – as the Ministry of Culture and National Heritage seems to suggest – an excessive obstacle for Internet service providers or threaten the freedom of access to information. The provisions of the DSM Directive, and consequently the provisions of the bill, are the result of a good compromise reached after lengthy discussions in the European Parliament and the Council and, as such, are balanced and, in my opinion, are a step in the right direction. I do not share the alarmist opinions that predict the end of freedom on the Internet and criticize the excessive burden on Internet service providers.

Even wider fair use of works

Significant changes introduced by the bill also include the extension of the scope of fair use of copyrighted works, i.e. use that does not require separate consent of the rightholder.

Particularly noteworthy is text and data mining, or their analysis using an automated technique used to analyse texts and data in digital form in order to generate, for example, patterns, trends, correlations, etc. The bill allows the reproduction of works for the purpose of text and data mining for research purposes and refers to strictly defined entities (libraries, museums, archives, cultural institutions, universities, research institutes, scientific institutes of the Polish Academy of Sciences).

Separately, the right to use texts and data for non-research purposes has been regulated. In this case, the provision of the draft (Article 26³) does not specify a list of entities that can enjoy fair use. The only limitation is when the rightholder has previously reserved his lack of consent to the reproduction of work for the purpose of mining and that the reproduced works may be stored only for the purpose of text and data mining and only for such time as is necessary.

The draft also modified, in accordance with the DSM Directive, the provisions on fair use for teaching purposes (the use of works takes place under the responsibility of an educational institution, on its premises or elsewhere or by electronic means available only to learners and teachers) and fair use for the purpose of preserving collections.

Easier VOD licenses?

The draft amendment to the copyright law includes an inconspicuous but potentially important provision of Article 73¹, which implements Article 13 of the DSM Directive. Its purpose is to facilitate the conclusion of licensing agreements for the provision of works on video-on-demand (VOD) services. On the basis of the new regulation, entities negotiating a contract for making a work available to the public as part of the VOD service will be able to apply to the Copyright Commission for mediation. The mediator chosen by the parties is to help them reach an agreement.

This is therefore the second type of contract for which the Copyright and Related Rights Act will allow the use of the Commission’s mediation – apart from rebroadcasting agreement.

Of course, this shape of the provision does not deprive the parties of the possibility of using the help of other institutions offering mediation services (e.g. the Court of Arbitration of the Audiovisual Market at the National Chamber of Audiovisual Producers, the Court of Arbitration at the Polish Chamber of Commerce, etc.).

New related right for press publishers

In the era of dynamic development of Internet services and news websites, the situation of press publishers is difficult, to put it mildly. The law does not provide them with control over their press publications, which are repeatedly copied and used by various types of websites, news aggregators or media monitoring services, of course without paying due remuneration.

The expectations of publishers were met by the DSM Directive and the draft law authored by the Ministry of Culture and National Heritage, which introduces a new related (exclusive) right for press publishers: “the right to press publications in the scope of use by information society service providers“.

Publishers will therefore have the exclusive right to use and dispose of their publications to enable information society service providers to:

• reproduce press publications using digital technology; and
• make publications available to the public in such a way that everyone can access them from a place and at a time of their choosing.

Publishers will be entitled to the right for two years from the end of the year in which the publication was first published. The draft law also determined the level of participation of authors of publications in the revenues obtained by publishers from the new exclusive right. They are entitled to 50% of remuneration.

The draft also introduced a list of situations in which the new related right will not apply. One of these situations may, in my view, lead to some difficulties of interpretation and potential disputes. This concerns an exception for “single words or very short fragments from a press publication”.

Unfortunately, nowhere in the Act on Copyright and Related Rights can we find an answer to the question of what is a “very short fragment of the publication”. Will it be a fragment containing, for example, 3 or 4 words, or the whole lead? Unfortunately, at this stage, no one is able to give a binding answer to this question.

See also: Protection of intellectual property

Assessment of the proposed changes to copyright law

The bill, although one year late than the original implementation deadline (7 June 2021), is a bill that the circles should welcome. First of all, it brings the Polish copyright system closer to the realities of the twenty-first century. Thanks to the implementation of the European regulations, copyright law in our country will finally respond to the challenges posed by the progressive digitization and information society.

The implementation process should be assessed positively – the provisions of both directives were introduced correctly, with a slight stumble regarding the definition of rebroadcasting. On the plus side, the European regulations have not been directly copied and pasted into the bill. The Ministry has clearly done some work to adapt these solutions to Polish realities and to the Polish copyright protection system.

On 20 July, the period of public consultations on the draft law ended. Their results, as well as the results of later stages of legislative work, will show whether the proposals of the Ministry of Culture and National Heritage will defend themselves or whether they will have to change. I only hope that the work on this important amendment will result in a constructive and substantive discussion.

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