Changes in Polish Copyright Law: Who Gains and Who Loses?

In June, the Polish Parliament (Sejm) passed a bill to amend the Copyright and Related Rights Act (hereinafter: “Copyright Law”) and certain other acts with a majority of 417 votes. The amendment aims to implement the European Union directive on copyright and related rights in the digital single market (the so-called DSM Directive – Digital Single Market). Considering that Poland is the last country in the European Union to have not yet implemented the DSM Directive, it is essential to take steps to efficiently adapt Polish law to EU regulations.

Positive Changes for Authors and Performers

One of the most significant solutions included in the bill is undoubtedly the amendment of Article 70, paragraph 21 of the Copyright Law, which regulates the rights of co-authors of audiovisual works and performers. Points 5 and 6 are to be added to the provision, extending the rights of these entities to appropriate remuneration for the public availability of the work in such a way that anyone can access it at a place and time of their choosing – point 5, and appropriate remuneration for the re-broadcasting of the work – point 6. This change should be viewed positively, as it grants authors and performers of audiovisual works an inalienable right to royalties from the exploitation of their works online and from re-broadcasting. It should be noted that the provision regarding remuneration for re-broadcasting was only added to the draft on June 27, 2024, in response to the expectations of the film and television industry.

Similarly, following the new Article 86a of the Copyright Law, authors and performers of musical, literary, and literary-musical works will receive royalties for making their works available online. This solution results from an amendment to the bill introduced just before the third reading of the bill in the Sejm. The original version of the amendment only covered performers of musical or literary-musical works. Therefore, songwriters and composers would have been excluded from the regulation, which met with justified opposition from creative circles.

Why is the Media Industry Protesting?

Despite the beneficial changes for the creative community mentioned above, the amendment did not consider the interests of the media industry to the expected extent. To protect against the reproduction of press publications by digital service providers (i.e., Google or Meta), a new category of exclusive publisher rights to manage and use press publications has been introduced. According to Article 99, paragraph 7, section 2 of the Copyright Law, the scope of protection will only cover reproduction for the purpose of disseminating content online, which may contribute to circumventing the law and reduce publishers' protection against copying their content.

Moreover, the amendment does not provide any instruments for publishers to effectively enforce remuneration for used content. The Sejm rejected an amendment that would have required service providers to provide (at the publisher's request) "information significant for determining the amount of remuneration" and would have also granted access to the service provider's related documentation. Additionally, a proposed change to support mediation between the publisher and the service provider by the Office of Competition and Consumer Protection was not adopted. Therefore, according to the bill, the parties should agree on the terms of use and the amount of due remuneration through negotiations without the involvement of external institutions. It is worth noting that it is difficult to speak of equal negotiations between small, local publishers and international media corporations.

Last Chance for Changes

After being passed by the Sejm, the bill was forwarded to the Speaker of the Senate and will then be sent for the President's signature. The stage of Senate work on the bill is thus the last chance to amend unfavorable provisions. As part of a media protest held on July 6, leading Polish media publishers appealed to the legislature to level the playing field in negotiations and amend the provisions affecting them in the upcoming amendment of the Copyright Law.

Undoubtedly, the provisions of the Copyright Law have recently become one of the most discussed topics, which, given the growing need to adapt the Polish legal system to the evolving digital reality, should be regarded as the most positive aspect of the ongoing discussion in the creative industry.