Copyright in Poland: new difficulties identified for artists and generative AI

Poland's largest copyright collective society with the biggest repertoire, the Society of Authors (ZAiKS), represents composers, lyricists, screenwriters, translators, visual artists, music publishers and others. The organisation has recently published a "reservation of rights" on its website for text and data mining (TDM).

Artist support

ZAiKS is concerned that the mass use of artificial intelligence (AI) tools will lead to the elimination of some artistic professions from the market. At the same time, the organisation has presented data showing that the use of AI leads to a significant reduction in artists' revenues.

As a result, ZAiKS requires a TDM licence for the works of the represented authors (although the required licence terms yet are not yet known).

Reservation content

The ZAiKS website states that it makes a reservation against all text and data mining activities. The reservation applies to all works whose rights are represented by ZAiKS to the extent that they are part - in whole or in part - of any type of distributed content. 

Any text and data mining activities carried out on content containing works whose rights are represented by the ZAiKS without consent will constitute an infringement of the copyright of the rightsholders represented by the organisation.

TDM exception

The EU's Directive 2019/790 on copyright and related rights in the digital single market generally provides for permitted TDM use but allows rightsholders an "opt-out". 

The Polish implementation states that it is permitted to reproduce distributed works for the purpose of text and data mining, unless the rightsholder has reserved otherwise. 

The reservation should be made clearly and appropriately, depending on the way in which the work has been made available. For works made available online, the reservation should be in machine-readable format.

ZAiKS doubts

According to the law, the reservation regarding online works must be clear and in machine-readable format.

The clarity of the reservation means that the opt-out statement should be placed on the same page as the opted-out work.

The machine-readable format is required because the reservation should be available directly to the programme that performs the TDM.

In order for a programme to exclude a particular resource from the data collection process, the reservation should be associated with it.  This means that the reservation in the model case should be linked to a specific file or directory on the server.

Placing the reservation on ZAiKS website raises the question of whether a programme conducting TDM will be able to associate such a reservation with the protected works.

ZAiKS believes that placing an opt-out statement on every website where the work is available is unreasonable.

Other ZAiKS's activities

Although ZAiKS believes that placing a reservation on its website is sufficient, it has also taken other steps to opt-out TDM. 

ZAiKS has declared that it is currently in correspondence with companies developing artificial intelligence. It has also provided authors with a robots.txt file. Using this file by the author appears to meet the opt-out requirements set forth by the regulations. In this respect, there are no doubts such as those in the case of the reservation on the ZAiKS website.

What's next?

The EU market, and especially the Polish market, has not yet developed a standard for reservations of the copyright collective societies. However, the first decisions of the respective authorities regarding the binding of the opt-out statements of the collective societies are already appearing in EU countries.

ZAiKS has stated that, to date, no company has concluded a licence agreement with it to train AI on protected works.

Osborne Clarke comment

Artistic professionals and the creative industries will have to wait for the development of a Polish practice and standard for reservations of the copyrights collective. Most rightsholder organisations in the EU may advise or create opt-outs to the TDM. It's debatable whether this is necessary, given that the Copyright Directives' TDM exception only considers legally available material, and because most creative licences are limited and exclusive.

However, any organisation using Polish works for TDM (including for the development of AI) should verify whether it is using the TDM exception correctly. Use of such a work despite an effective opt-out may result in copyright infringement and potential liability.

If you have any quetions, please contact our intellectual property team.