On the 20th of September 2024, an amendment to the Act of 4 February 1994 on Copyright and Related Rights (Copyright Act) entered into force, which brings the legislation in line the European law.

The long-awaited amendment enters into force more than three years late. This is because Member States had the time to introduce the provisions necessary to implement the aforementioned Directives until the 7th of June 2021. (Article 12(1) of the SATCAB II Directive and Article 29(1) of the DSM Directive).

The amendment adjusts the regulations to:

• Directive (EU) 2019/789 of the European Parliament and of the Council of 17th of April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and to the retransmission of television and radio programmes (SATCAB II Directive);
• Directive (EU) 2019/790 of the European Parliament and of the Council of 17th of April 2019 on copyright and related rights in the Digital Single Market (DSM Directive).

Liability of online platforms

One of the key elements of the amendment is the change in the liability of online content sharing service providers (online platforms). As from now on, online platforms that have made a work posted by a third party available to the public without the required consent of the right holder will be liable for copyright infringement. However, exemption from liability will be possible if the online platform demonstrates that:

• all due diligence was exercised to obtain permission for publication from the right holder, and
• all due diligence has been exercised to prevent access to that work, if the right holder has provided the online platform with information appropriate and necessary for that purpose, allowing – in particular – the identification of the right holder and identification of the work, taking into account available technological means, and
• the action was taken immediately upon receipt of a duly justified request from the right holder to block access to that work or to remove it from its websites, and all due diligence was exercised to prevent access to that work in the future, if the right holder has provided the platform with relevant information (Article22(2)(1) Copyright Act).

However, the necessity to prove the above circumstances will vary and depend on the length of time the online platform has been operating, the amount of revenue or the monthly number of visitors (Article22(2)(2) of the Copyright Act). The assessment of whether an online platform has met the prerequisites for exemption from liability is made by taking into account all relevant circumstances of the case, such as, inter alia, the type and scale of the services provided, the circle of service recipients or accessibility (Article 22(3)(3) of the Copyright Act). Exemption from liability may therefore be more difficult for the largest online platforms.

The amendment is therefore intended to make it mandatory for online platforms such as YouTube and Google to actively monitor published content and take action to prevent copyright infringement.

Changes to the remuneration of authors

Another important element of the amendment are changes to the remuneration of authors. The added Article 21(4) of the Copyright Act provides authors of literary, journalistic, scientific, musical or verbal and musical works with the right to appropriate remuneration for making the work available to the public in such a way that everyone can have access to it at a place and time chosen by them. An analogous entitlement is also granted to co-authors of audiovisual works and performers (Article 70(2)(5) of the Copyright Act). As a result of the amendments, authors are therefore guaranteed an unwaivable right to royalties for the use of their works on the Internet.

A further change in the provisions on authors’ remuneration is the emphasis that the remuneration due to the author is to be fair and appropriate to the extent of the right granted, the nature and extent of the use and the benefits arising from the use of the work (Article 43 paragraph 2 of the Copyright Act). The measures of authors’ remuneration have therefore been clarified, and a presumption has been introduced that remuneration proportionate to the revenue from the use of the work meets the requirements of aforementioned fairness (Article 43(3) of the Copyright Act).

In practice, this means that royalties can no longer be set in a way that is inadequate to the profits obtained by publishers, producers or online platforms.

There has also been a change in the institution of the so-called bestseller clause (Article 44 of the Copyright Act). It follows from the new wording of the provision that the author will be able to demand an appropriate increase in remuneration by the court in the event that the author’s remuneration is disproportionately low in relation to the benefits of the acquirer of the author’s economic rights.

Significant changes have also been introduced with regard to the authors’ rights to receive information from the person to whom the author’s economic rights have been transferred or from the person to whom the author has granted a licence. As a result of the amendments, authors will be entitled to receive regular information from the above-mentioned persons on the income from the use of their work and the remuneration due in connection with such use, separately for each of the forms of use. The change is intended to allow the value of the creator’s work to be assessed and to help effectively negotiate higher remuneration.

Summary

In addition to the changes described above, the amendment introduces, inter alia, new provisions concerning the legal protection of press publishers and extends the scope of permitted use of works for educational and research purposes.

According to the Ministry of Culture and National Heritage, the amendment to the copyright law is one of the most favourable in Europe from the point of view of authors. Undoubtedly, the changes introduced are a step towards the modernisation of copyright law in Poland. However, the original plans to introduce regulations on the exploitation of works with the use of artificial intelligence were not realised. These provisions were eventually excluded from the present amendment and may require separate regulations in the future.