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In February, nearly three years after the deadline for the implementation of the Directive on Copyright and Related Rights in the Digital Single Market (Directive 2019/790, DSM) and the so-called “SATCAB II” Directive (Directive 2019/789), a new version of the draft amending three laws appeared on the website of the Government Legislative Centre, aimed at transposing the EU provisions into the Polish legal order. The amendments concern the Act on Copyright and Related Rights, the Act on Collective Management of Copyright and Related Rights, and the Act on Protection of Databases.
Efforts to pass legislation incorporating the aforestated regulations fell short in the last term of the Polish Parliament. As the term concluded in November 2023, the legislative process had to begin once again.
The essence of the DSM is to address the issue of exploitation of works in the digital environment, i.e., on the Internet. It sets out to provide greater protection for content on the Internet, but also (or even primarily) the authors of this content and their publishers. This is to be achieved by introducing a new additional category of related right for press publishers for the use of their online content (Article 15 of the DSM). The aim of the neighboring right is to strengthen the position of traditional media vis-à-vis content aggregators and search engines. The DSM also addresses the scope of protection for users’ online freedom of expression to facilitate the legal exchange of UGC.
In addition to transposing the DSM into national law, the amendment aims to implement the so-called “SATCAB II” Directive– just as delayed. Its objective is to create conditions for the widest possible dissemination of television and radio programs within the Member States. In addition, this law facilitates licensing of works and objects of related rights within such broadcasts. Both directives are relevant to the daily operations of the creative industry.
Regarding television and radio programs, Directive 2019/789 regulates broadcasters’ ability to provide television and radio programs abroad via their online services, including, among other things, obtaining licenses for the retransmission of television and radio channels.
These directives were due to be incorporated in June 2021. However, similarly to last year, in this article, we can, unfortunately, only discuss the draft implementing legislation since the legislative process is, once again, still pending and remains in the initial, pre-parliamentary stage. The deadline for public consultations on the draft passed at the end of February.
In mid-February 2023, the European Commission referred Poland to the Court of Justice of the European Union (CJEU) for failing to implement EU law.
Failed challenge. Poland against the DSM: Case C-401/19
It is worth noting in the context of the DSM that in April 2022, the CJEU issued its judgment in Case C-401/19, Poland v. Parliament and Council, concerning the DSM’s most controversial provision, Article 17, which provides for a new liability regime for the largest online content-sharing service providers.
Strengthening the position of press publishers – the new 2024 draft
DSM Article 15 provides press publishers and agencies with certain related rights under which they will be entitled to decide what can be published or republished (including in the form of excerpts) by search engines, content aggregators, etc., and when such publication or republication can occur.
These rights are similar to those that the producers of phonograms and video games or radio and television broadcasters have already enjoyed for many years. More specifically, the rights in question are the exclusive right to authorize or prohibit the direct or indirect, temporary or permanent reproduction of a work (Article 2 of the INFOSOC Directive) and the exclusive right to authorize or prohibit any communication of works to the public (Article 3 of the INFOSOC Directive) – and, in this particular case, are now extended to press publications (whether or not they constitute a work).
According to the most recent draft, in the event that press publishers and agencies exercise their right to make press publications (and fragments thereof) available for commercial purposes, the compensation owed shall be shared on a “50:50” basis. The solution adopted is the same as the one presented in last year's draft version. Journalists, photographers, graphic designers, etc., will be guaranteed a fair share of the compensation received by press publishers and agencies for exercising their related rights. According to the current draft, creators of press materials will be entitled to 50 percent of such compensation. Although rightsholders are expected to be represented by a collective management organization (CMO), such an intermediary remains not mandatory under the current version of the draft.
Currently, the Ministry of Culture and National Heritage manages the system for the collective management of copyright(s) in Poland. To operate, each individual CMO must have a license from the Ministry, and such licenses are granted for each specific field of exploitation. This means that if publishers and authors wish to take advantage of the strong negotiating position of a CMO, they will need to wait until the appropriate license(s) is granted, which will likely take at least several months (if not years) after the new law comes into effect. The Directive’s transposition is expected to occur soon, but no specific details have yet been made available.
What about performers and filmmakers? VOD tax and VOD royalties
Since July 2020, VOD service providers have been required to pay a 1.5% levy of their revenues from subscription fees or advertising (whichever is higher) to the Polish Film Institute (which is commonly referred to as the “VOD tax”). In 2022, the Polish Film Institute received more than PLN 32.8 million in fees from on-demand audiovisual media service providers. This “tax” is intended to be used to support Polish film. The funds will be indirectly distributed to creators for motion picture projects, such as, for example, film production and the organization of film festivals and other related events.
Under the Polish Copyright Act, no royalties are owed to either the performers or creators. Last year’s version of the draft could have potentially ended this strange situation. Importantly, the current proposed version of the Act does not provide for changes regarding additional remuneration for filmmakers. It is worth noting that currently the obligation to introduce such changes does not stem directly from the abovementioned directives, particularly the DSM Directive.
However, following a wave of protests from performers and filmmakers, demanding 1.5 percent of the annual revenues that all streaming platforms in Poland earn, the Minister of Culture and National Heritage announced that filmmakers would receive royalties for showing their films and series on VOD services.
Article 18 of the DSM Directive imposes an obligation on Member States to provide appropriate and proportionate remuneration to authors and performers who license or transfer their exclusive exploitation rights over their works - with Member States being free to use different mechanisms to this end while having consideration for the principle of freedom of contract and a fair balance of the rights and interests of the parties involved. National legislators are, therefore, left with some discretion in this regard without definitively resolving the obligation to extend royalties to specific forms of exploitation (such as VOD).
While the right to claim additional remuneration for VOD services is still not supported by Polish law, the issue of royalties for film screenings in cinemas is quite different. Article 70(21) of the Copyright and Related Rights Act grants co-creators of a film and performers the right to remuneration which is to be proportionate to the revenue generated from the screening of an audiovisual work in cinemas. This provision therefore allows filmmakers to participate in the profits that cinema operators receive from the sale of admission tickets or vouchers for a selected film screening.
How is Poland approaching the update of the “SatCab” Directive?
The updated “SatCab” Directive (i.e., Directive 2019/789) includes a distinct definition for “direct injection”. The draft Polish legislation introduces direct injection as a separate paragraph and also within the definition of “retransmission.” In last year’s draft, it was proposed to be introduced only within the meaning of “retransmission.”
Contrary to last year’s version, the current draft legislation includes a separate definition of “direct injection.”
… and a lot more to come.
Since the legislative process is still pending for all of the above issues and the last several weeks have shown that matters are quickly evolving, we recommend keeping an eye open for their eventual outcomes. If you are interested in receiving updates on these topics and other potential developments, we would be happy to share our thoughts.
Agnieszka Wiercinska-Kruzewska is a co-founder and senior partner at WKB, head of intellectual property and TMT team, also closely cooperates with the M&A team. A graduate of the Faculty of Law and Administration at Adam Mickiewicz University in Poznań, As a holder of the Soros Foundation scholarship at the Central European University in Budapest she completed an LL.M course in international commercial law. She advises clients on all aspects of copyright, industrial property, consumer law, unfair competition, personal data protection, internet domains, press law and protection of personal rights. Agnieszka has also extensive experience in legal advisory services concerning sensitive product marketing and gambling. Within her areas of practice, apart from providing ongoing advice, she represents clients in litigation and arbitration proceedings. She has many years’ experience in the acquisition of companies on private market.
POLAND
Poland’s complicated and long (but not love) story with the Directive on Copyright and Related Rights in The Digital Single Market: Is Poland finally implementing new EU Directives related to the media and entertainment sector?
Written by Agnieszka Wiercinska-Kruzewska & Paulina Maslak-Stepnikowska
WKB Wiercinska, Kwiecinski, Baehr
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There are at least two directives relevant to the daily operations of the creative industry for which the transposition deadline has already passed without result in Poland: Directive 2019/790 on copyright and related rights in the Digital Single Market and the EU updates to the, so-called, “SatCab” Directive.
Agnieszka Wiercinska-Kruzewska
Paulina Maslak-Stepnikowska
Paulina Maslak-Stepnikowska is a member of the IP & TMT practice and specialises in intellectual property law, in particular copyright and industrial property, including in proceedings before national and international bodies. Paulina assists clients from the technology, retail, publishing and fashion industries (including press and book publishers, and shoes manufacturers) and the automotive market, advising on matters including national and international trademark protection, inventions, industrial and utility designs, as well as in contentious proceedings. She has advised entrepreneurs on developing strategies for the protection of products and technologies with regard to their commercialisation and distribution, as well as on infringements of their rights on the Polish and EU markets. Paulina has represented clients before courts, including the EU Trademarks and Designs Court in Warsaw, Polish Patent Office, EUIPO and WIPO. She is a recipient of a scholarship at the Ruprecht-Karls-Universität in Heidelberg and a graduate of postgraduate studies in intellectual property law at the H. Grocjusz Intellectual Property Rights Centre. She is also a co-author of a manual titled Turn Your Public On.
Biographies
