Amendments to Polish Copyright and Related Rights Law
- Instruments concerning the remuneration of the author granting a licence or transferring the author's economic rights
- New liability rules for online platforms regarding uploaded works
- New rules of remunerating authors of press publications and publishers
On 20 September 2024, an amendment to the Polish Act of 4 February 1994 on Copyright and Related Rights entered into force.
The amendment of the Act resulted primarily from the need to implement the Directive of the European Parliament and of the EU Council of 17 April 2019. (Directive 2019/789) laying down provisions on the exercise of copyright and related rights and Directive 2019/790 on copyright and related rights in the digital single market, which were to be implemented in June 2021.
The amendment introduces significant changes in particular with regard to:
Instruments concerning the remuneration of the author granting a licence or transferring the author's economic rights
At this point, it is worth mentioning that authors transferring economic rights to a work or granting licences for the use of a work were already entitled in the previous version of the Copyright Act to apply an increase of remuneration by the court or to receive information from a licensee or a purchaser of economic copyright to documentation relevant for the determination of remuneration. The amendment provided additional instruments that authors will be able to use in determining and increasing the remuneration for a work.
From now on, if the remuneration of the author depends on the amount of income from the use of the work, the author has the right to receive information relevant to the determination of the remuneration and to inspect, to the extent necessary, the documentation relevant to the determination of the remuneration.
Above all, the author has obtained the right to receive regular updates from the purchaser of the author's economic rights or the licensee on the revenues from the use of the work and the remuneration due in connection with such use. Each field of exploitation of the work by the licensee or the acquirer of the economic rights is subject to a separate report to the author. This information shall be communicated to the author at least once a year and no more frequently than quarterly.
In a situation where a licence or a transfer of economic rights has been transferred to a third party, the author must be notified of this and, upon request, may obtain details of the third party who has obtained the licence or acquired the economic right. The reporting obligations is also transferred to the third party.
From the author's point of view, these changes are undoubtedly positive, as they strengthen his rights in the context of increased remuneration within the new fields of exploitation of the work by the licensee or the acquirer of the author's economic rights. In addition, it is beneficial for the author to stipulate in the contract that his remuneration will depend on the revenues from the exploitation of the work - if the revenues are higher than expected at the beginning, the author is entitled to a corresponding increase in remuneration and has the instruments to verify these revenues.
From the point of view of the licensee and the acquirer of the copyright, it is extremely important to strictly stipulate contractual obligations in the context of remuneration, in order not to legally expose oneself to additional and excessive costs in the future for the exploitation of the work. Copyright law provides a framework, but leaves a large part of the remuneration issues to a possible reservation in the contract. The author, in the absence of such strict arrangements, will have rights which he may lawfully exercise.
New liability rules for online platforms regarding uploaded works
Platforms such as Google, Youtube, Facebook, in connection with the amendment, are now recognised as entities using works and related rights posted by users, and therefore, there will be an obligation on these platforms to verify shared works for possible copyright infringements and to take certain measures to protect works from unauthorised public making available.
In particular, it should be emphasised that if a work is made public without the author's consent by a platform user, the platform will be liable for copyright infringement. The platform can protect itself from liability in such situations if it demonstrates that:
- it has exercised due diligence to obtain consent and;
- exercised due diligence to prevent access to the work after the owner of the work provided the platform with adequate information to achieve that purpose; and
- acted promptly upon receipt of a request from the author to block access to the work or remove it from its platform, and made reasonable efforts to prevent future access to the work.
Additionally, in order to avoid being held liable for copyright infringement, if such an entity's platform has an average number of visitors exceeding 5 million per month, it must demonstrate that it exercised due diligence to prevent access to the work.
The actions of such a platform, on the other hand, may not block the making available to the public of works that are made available by the user in exercise of the right of fair use.
Importantly, such a platform, as part of these obligations, is not obliged to generally monitor whether a platform user is posting a work to the public in a lawful manner. This may mean that the platform should establish general rules for its users as to the posting of works, i.e. making them available to the public, also in the context of demonstrating the consent of authors to make them available to the public, but the platform's action may only be taken upon legitimate requests by legitimate authors.
New rules of remunerating authors of press publications and publishers
First of all, the amendment introduced for authors of press publications a remuneration of not less than 50% of the total remuneration due to the publisher from the published press material on account of the newly created related right of the publisher - the right of exclusive online exploitation of press publications by online platforms. This is a rather special change, as such remuneration is unprecedented in comparison with other European countries.
These rules will apply to press publications understood as a set of works or objects of related rights of journalistic nature, published and updated within daily newspapers, magazines, press agency services or online news services, which, however, do not constitute publications distributed for scientific or academic purposes.
At the same time, as part of the emergence of a new related right for publishers, they are entitled to receive detailed information from service providers, including online platforms, and to inspect the service provider's documentation in order to determine the remuneration due to the publisher for the use of its related right. On this basis, the publisher will be able, inter alia, to verify information on the revenues received directly and indirectly by online platforms in relation to the reproduction and making available to the public of a press publication, as well as the duration of the platform's use of the right.
The service provider (online platform) and the publisher may, on the basis of the amendment, reach an agreement on remuneration through mediation before the President of the Office of Electronic Communications. After unsuccessful settlement negotiations, either party may apply to the President of OEC for a unilateral decision setting the amount of remuneration for the use of this right.
The described amendment implemented the DSM Directive and the SATCAB II Directive into the Polish legal order, but it seems that this has been done only partially. The Copyright Act unfortunately did not standardise within the framework of the amendment the issues concerning the reproduction of distributed works and the practice of Text&Data mining by artificial intelligence, so authors will still have to wait for protection at the level of national legislation in the context of the contact of their works with artificial intelligence-based programmes.
Authors: Szymańska Julia, Erohovec Ekaterina
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