Copyright in Poland: additional responsibilities for content publishing platforms

Statutory royalties on VOD services
• Currently, the Polish Act on Copyright and Related Rights does not provide for royalties for public distribution of a copyrighted work via the Internet.
• Once the previous bill implementing the DSM was abandoned after the recent elections, the proponents of the new draft announced that they do not plan to impose a statutory obligation on VOD (video-on-demand) services to pay royalties.
• However, in its final adopted wording, the Amendment contains provisions governing
”appropriate” remuneration for making a copyrighted work available to the public in a manner that allows everyone access to it from a place and at a time of their choosing, which covers VOD services.
• Authors of the bill accepted arguments raised by the film community, whose representatives underscored the fact that the use of copyrighted works and artistic performances on the Internet has become more widespread in recent years. The law should guarantee creators (and performers) a share of the revenues from the online use of their audiovisual works and performances.
• The Polish legislator intended to secure royalties for online creators as part of a stronger
implementation of the principle arising from Article 18 of the DSM (and already existing in
Polish law), i.e. the principle of "appropriate" and "proportional" remuneration.
• Creators of audiovisual works (and performers) will exercise their right through a copyright collective.
• Provisions governing online royalties are also to be extended to authors and performers of literary, journalistic, scientific and musical (including songs) works. Those authors and
performers will be able to exercise their right personally or through a copyright collective or another entity. Additional remuneration for press publishers
• The Amendment implements Article 15 of the DSM by introducing into the Polish legal system a new "right to press publications in the provision of electronic services".The new law prohibits information society service providers from reproducing or making press
publications available to the public online without proper authorization.
• These restrictions will apply to search engine providers, but also to operators of online
platforms or social networks.
• The amount of remuneration for using a press publication, or the manner for determining this amount, will generally be subject to negotiations between the publisher and the service provider.
• However, the Polish legislator decided to introduce an additional instrument to assist press publishers, which is not mandatory under the DSM.
• The Amendment establishes criteria for determining the remuneration amount. If the parties fail to reach an agreement, each of them may apply to the President of the Office of Electronic Communications for mediation regarding the remuneration amount.
• If no agreement is reached, either party may apply to the said competent authority for a
remuneration decision. Parties will be able to challenge the authority's decision in a court of law specializing in matters of intellectual property.
 

Disclosure duties
• The Polish legislator also extends, compared to Article 17 of the DSM, the scope of the dispute resolution mechanism, which would cover the new obligations of online content service providers.
• The Polish legislator has decided that, in some cases, information may be requested even on a quarterly basis.
• The Amendment also introduces many other changes, some of which are specific to the
Polish legal system. A few examples are detailed below.
• Users of platforms will be able to file a complaint concerning prevention of access to
a copyrighted work, blocking access or removing a copyrighted work. No fee will be
charged on the complaint and it will be investigated without undue delay.
• Where a complaint is deemed unjustified, the provider will be required to inform the user
without delay and provide a written justification. Furthermore, the provider cannot consider the complaint to be unjustified in an automated manner.
 

Online service providers, especially the largest ones, need to implement appropriate mechanisms to ensure compliance with the new requirements.
 

Compliance will require taking into account the specifics of Polish regulations, especially those related to: (i) VOD royalties, (ii) negotiation procedures with press publishers, or (iii) liability rules for online service providers.

The major parts of this Amendment into Polish copyright law will enter into force one month following its publication and once signed by the President. We believe this would happen by the end of this year at the latest.