Poland
Status
In progress
Explanatory note re status
The Polish Government published a revised draft act implementing the DSM Copyright Directive on 4 January 2023. The Parliament should adopt the act after its adoption by the Polish Government, but this may take another few months.
Implementation Act
Draft Act amending the Act on Copyright and Related Rights and some Other Acts, No UC 103, ("Projekt ustawy o zmianie ustawy o prawie autorskim i prawach pokrewnych oraz niektórych innych ustaw")
Implementation Date
Unknown
Next steps
The published act is now being discussed by the govenment. Afterwards, it will be sent to parliament.
Noteworthy points arising from legislative changes
The draft act does not contain specific provisions regarding its application in time, except for the six-month delay in the entery into force of the article implementing Article 19 of the DSM Copyright Directive. Otherwise, the general rules will apply. The provisions of the draft act will apply to copyright works and other subject matter protected by the Polish Copyright Act on the date of entry into force of the act and subsequently. In reference to press publications, the draft act stays close to the text of the DSM Directive, consequently the press publications first published before 6 June 2019 will not be protected under new rules.
Articles 3 & 4: The Text and Data Mining Exceptions
The legislative proposal is similar in wording and structure of the DSM directive. The implementation proposal is contained in new articles 26(2) and 26(3) of the Polish Copyright Act and the new Articles 8a and 8b of the Act of 27 July 2001 on the protection of databases.
Article 15: The Press Publishers' Right
To be implemented in articles 99(7) - 99 (10) of the Polish Copyright Act and amended Article 100 of the Polish Copyright Act. The text of the implementation stays very close to the text of Art. 15 of the DSM. The proposed Art. 99(9) provides that authors must receive 50% of the press publisher's remuneration, which should be paid to the author no later than within 30 days of receipt by the press publisher.
Article 17: Platform Liability Provisions
To be implemented in Articles 6(1)(22) and 22(1) - 22(7) of the Polish Copyright Act. The text of the implementation adheres closely to the text of Article 17 of the DSM Copyright Directive. Following the CJEU judgment in case C-401/19, the government proposed an additional provision stating that an OCSSP may not be required to prevent access to a work, to block access to a work or to remove a work if its communication to the public does not infringe copyright “manifestly and unquestionably”. Additionally, the OCSSPs are also obliged to immediately inform the user of any disabling, blocking or deletion of a work posted by such user.
Chapter 3 Overview
Some of the legal provisions introduced in Chapter 3 of the Directive already existed in the Polish Copyright Act (e.g. the bestseller right in Article 44, right of revocation in Article 57, ADR mechanism in the of the Civil Procedure Code). Therefore, the implementation of Chapter 3 mainly consists of clarifications in order to fully ensure the rights provided by the Directive.
Article 18:
It has already been partially implemented into Polish law by means of Article 43 of the Copyright Act, but it does not refer to "adequate and proportional" remuneration. It is also to be implemented by means of two new articles: Article 70(21)(5) and Article 86(1) of the Copyright Act, which cover additional renumeration for authors, performers of audiovisual works as well as music works and works comprising of text and music for making a work available to the public in a way that allows everyone to access such from a place and at a time individually chosen by them.
Article 19: Transparency Obligations
To be implemented in Articles 47(1) - 47 (2) of the Polish Copyright Act. Facultative Articles 19(4) and (5) DSM Directive are going to be implemented. By a way of ministerial decree, the minister competent for culture and national heritage protection, may determine the frequency and/or the scope of the information provided. Moreover, it is stated directly that the transparency obligation does not apply to the employee works created as part of duties under the employment relationship.
Other Information
Draft Implementation Bill [https://legislacja.rcl.gov.pl/projekt/12360954]. The draft act also transposes the Online SatCab Directive (EU) 2019/789, which promotes cross-border access to broadcasts for the European civil society. Additionally, the draft act clarifies certain issues related to licensing agreements not covered by the EU legislation.
