Poland is the last country within the European Union that has not implemented into its legal system the regulations contained in the following EU directives:
- 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (hereinafter referred to as „SATCAB II”); and
- 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (hereinafter referred to as „DSM”).
In the previous term of the Polish Parliament, work on the laws implementing the above regulations did not finally come to fruition, and with the term of the Polish Parliament ending in November 2023, the legislative process began anew.
On February 15th, 2024, a new act amending the Act on Copyright and Related Rights of February 4th 1994 and certain other laws (including the Act on the Protection of Databases of July 27th, 2001 and the Act on Collective Management of June 15th, 2018) appeared on the website of the Government Legislation Centre.
As was the case with the previous draft act, an important issue in the context of the changes being introduced is the issue of remuneration for the use of audiovisual works in order to make the works available to the public in such a way that everyone can access them at a place and time of their own choosing. Put another way, this issue relates to the obligation of providers of online content-sharing services (VOD and streaming platforms) to pay an additional remuneration for the use of works – such providers until now under art. 70 of the Polish Copyright and Related Rights Act had no such obligation at all. The focal point of this regulation is the manner in which this remuneration shall be settled - two different concepts clash here, which have been regulated in different ways in draft acts over the past few years.
The first concept envisages the intermediation of collecting society ("CSs") in the process of payment of remuneration. Such a solution provides that authors and performers would be represented by the CSs, which would enter into the relevant agreements governing remuneration on their behalf. The second concept is that the remuneration of authors and performers would be determined in individual contracts directly concluded by the interested parties with providers of online content-sharing services.
In principle, the DSM does not explicitly resolve how the above issue should be resolved – art. 18 of the DSM states that Member States shall ensure that where authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject matter should be entitled to receive appropriate and proportionate remuneration (the so-called principle of appropriate and proportionate remuneration). When implementing the said principle in national law, Member States may use various mechanisms taking into account the principle of contractual freedom and a fair balance of rights and interests.
This issue has become the subject of public debate in Poland and has been heavily criticized by concerned authors and performers, who see the adoption of a solution providing for direct regulation of remuneration (without the intermediation of CSs) as strengthening the dominant position of online content-sharing service providers.
Under pressure from the concerned circles, the Ministry of Culture and National Heritage, which is responsible for the implementation of the DSM in Poland, finally decided to amend the draft act and introduce into it the obligation of intermediation of the CSs in the process of payment of remuneration for the use of audiovisual works by online content-sharing service providers. At the same time, the Ministry announced that the modified draft act will be published in the coming weeks.
