On 20 September 2024 a long-awaited amendment to copyright law came into force. It implements the provisions of two directives, namely Directive 2019/789 (SatCab II) and Directive 2019/790 (DSM Directive).
The amended provisions are intended to provide better protection for creators, performers, publishers and journalists, primarily with regard to the exploitation of their works online. They introduce additional rights for creators, tools to enforce remuneration for public communication of works, and increase the liability of online platforms.
Royalties for making works subject to copyright available online
An important change, long awaited and, however, given the level of development of the Internet in Poland, much overdue, is the granting of remuneration to authors for making their works available online.
The amendment grants the right to appropriate remuneration for making their works available online to a fairly broad group of authors, i.e. authors of literary, journalistic, scientific, musical and verbal and musical works, including authors of the development of such works, as well as co-authors of audiovisual works.
As for the last mentioned group, i.e. e.g. directors, cinematographers, screenwriters, so far the main source of income for them has been royalties from television broadcasters. Creators are also entitled to remuneration for showing their work in cinemas or renting copies of works for public performance. Thanks to the amendment, audiovisual creators will be entitled to remuneration in two new fields of exploitation:
- for making their works available to the public on Internet, e.g. on streaming platforms such as Netflix,
- for their rebroadcasting (e.g. on pay-TV).
New related law for press publishers
At the legislative stage of the amendment, the lack of remuneration for the use of press publications by various online portals was widely discussed in the media. The crux of the dispute was the issues of regulating how remuneration for the use of online publications is determined and negotiated, particularly in relations with technology giants.
Under the amendment press publishers have been granted the exclusive right to dispose of and use a press publication to the extent of its reproduction for use on Internet and to make it publicly available on Internet.
The amendment provides for certain limitations of the new related right, which does not apply, for example, to the public making available a hyperlink to a press publication or single words or very short excerpts of a press publication. In addition, it is a temporary right and expires at the end of two years following the year in which the publication was first distributed.
As regards the remuneration to the author of the works from the press publication, the author is entitled to 50% of the remuneration due to the publisher for making the publication available online.
Liability of online platforms
One cannot fail to mention the liability of an online content service provider, such as YouTube or Facebook, for copyright infringement.
The amendment strengthens the protection of creators. First of all, it should be noted that platforms will be obliged to obtain consents (licenses) for making works available to the public from entitled entities.
It is expressly provided for the liability of a provider of online content services for infringement of copyright by making publicly available a work posted by the platform user without the required consent of the right holder. A platform may exempt itself from this liability by showing that:
(i) it exercised due diligence to obtain such consent, and
(ii) it exercised reasonable diligence to prevent access to that work where the right holder provided it with information enabling it to do so, and
(iii) acted promptly upon receipt of a request from the right holder to block access to or remove the work, and took reasonable care to prevent future access to the work.
The amendment seeks to ensure a balance in the relationship with the platform user, i.e. the person who uploads content to the platform, who then makes it publicly available. In particular, the cooperation between the online platform and the right holder in determining liability for possible copyright infringement must not lead to the unavailability of works lawfully uploaded by the platform user, in particular under fair use provisions. The platform is to immediately inform the user whenever access to the work posted by the user is prevented, blocked or removed. Finally, the user is to be able to submit a complaint without charge when one of the above-mentioned situations of disabling access to a work occurs.
Summary
The comprehensive amendment to copyright law is of fundamental importance for creators, who have long been deprived of remuneration for their work available online. The amendment also brings beneficial changes for publishers and journalists. The amendment should be viewed positively, as it fills a gap in the absence of a guarantee of remuneration for the author for the use of his or her work on Internet, which the law seemed to overlook for years.
Attorney at law
Partner GKR Legal
