The summary has been written by Adam Karpiński and the public policy team of Centrum Cyfrowe.
In October 2015, Poland completed the process of amending the national Act on Copyright and Neighbouring Rights. Its aim was to adapt Polish law to the EU requirements:
- the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
- the Directive 2006/115/EC (the Directive on rental right and lending right); and
- the Directive 2012/28/EU (the Directive on certain permitted uses of orphan works).
Additionally, the amendment aimed at clarifying or modernising some other rules, including copyright exceptions and the regulation of ‘domaine public payant’ (i.e. royalties for the use of works in the public domain).
The amendment was the result of a consultation and legislative process that lasted over two years. During this time, the Ministry of Culture and National Heritage initiated a series of meetings on key reform issues within the framework of the Copyright Forum (Forum Prawa Autorskiego) and gathered feedback from various entities, including Centrum Cyfrowe. This process was characterised by a strong presence of non-governmental organisations, and generated some heated debates between NGOs and representatives of rights holders.
The amendment was divided into two parts. The first part – the so called ‘small amendment’ – was a much delayed implementation of the Directive 2011/77/EU. It extended the term of protection for related rights (artistic performances, phonograms) from 50 to 70 years. In addition, rights were granted to artistic performers in relationship to phonogram producers (for example, the right to terminate the agreement and the right to additional remuneration). The amendment went into effect on 1 August 2015.
The second part – the so called ‘big amendment’ – covers two main areas:
- copyright exceptions, including the use for educational purposes, the use of out-of-commerce works, the use of orphan works, the right to quote, the use by libraries and public lending right;
- domaine public payant.
From the perspective of openness and the modernisation of copyright law, the ‘big amendment’ is particularly important. We examine the changes thoroughly below. Most of the amendment provisions went into effect on 20 November 2015.
1. Copyright exception for educational purposes
According to the narrative presented by the Ministry of Culture and National Heritage, the aim of the proposed legislation was to ensure (based on EU law which seeks a balance between the interests of rightholders and users) the widest possible access to works for education purposes through an exception to copyright.
1.1. The scope of beneficiaries
First, the copyright exception for educational purposes has been expanded. Prior to the amendment, the provision had the following wording:
Research and educational institutions shall be allowed, for teaching purposes or in order to conduct their own research, to use disseminated works in original and in translation, and to make copies of fragments of the disseminated work.
With the amendment, the phrase research and educational institutions has been changed to say educational institutions, universities and research entities within the meaning of the Polish Act on the Principles of Financing Science. The amendment also now defines educational institutions as primarily ‘organizational units’ referred to in the Polish Act on the Educational System (which include dozen types of schools and institutions). The aim of these alterations is to clarify the scope of the beneficiaries of the educational exception.
However, this clarification might in fact narrow the group of institutions that can take advantage of the educational exception. If we take a look at recital 42 of the Directive 2001/29/EC (‘the InfoSoc Directive’), we see this:
When applying the exception or limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding of the establishment concerned are not the decisive factors in this respect.
This passage means that uses of copyrighted materials under an educational exception will be judged based on the character of the use, not on the type or user. The final sentence in this language suggests that national copyright acts should not limit the scope of the beneficiaries of educational exception to only entities with a specific legal status—such as an ‘educational institution’ defined by the Polish Copyright Act.
Another difference between the InfoSoc Directive language and the Polish Copyright Act text is that the Act does not require that the use under the educational exception can only be for non-commercial purposes. However, Centrum Cyfrowe thinks that anyone who participates in the education process (even commercially) should be treated in the same way, regardless of whether they are a public university, high school, private language school, local club-room, or NGO. You can read here about how to create a copyright exception for educational purposes.
Concerning e-learning, the amendment added the following provision:
In case of making works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, the use mentioned in the paragraph 1 is permissible only for limited circle of learners, teachers or persons conducting scientific research, identified by the entities listed in paragraph 1.
This means that the educational exception may now be used in e-learning contexts. Just like the main educational exception, it is also limited to educational institutions, universities and research entities.
2. Copyright exception for out-of-commerce works
The amendment introduces a new form of exception based on the framework Memorandum of Understanding (MoU) on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, which was discussed in the European Commission in 2011.
An out-of-commerce work in the Polish Act means a work that is neither:
- available for customers in the course of trade with the consent of its copyright holder;
- placed on the market in the form of copies in number satisfying rational needs of customers;
- made available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them.
The exception allows for the reproduction of out-of-commerce works, and making them available online. However, several restrictions were introduced, including:
- the exception applies only to printed works published in Poland for first time before May 24, 1994;
- the exception applies only to archives, educational institutions, universities, scientific institutions, and cultural institutions;
- the use of works under the exception is permitted provided conclusion of contractual obligations with a copyright collecting society;
- the use of works under the exception is permitted only in order to carry out the statutory tasks of mentioned entities, insofar as these tasks serve the public interest;
- entities mentioned in point e. above shall be entitled to receive revenues from the use of works out-of-commerce, as far as revenues are intended to cover the direct costs of digitization and costs associated with making out-of-commerce works available.
Each of the above restrictions may be justified on the basis of the MoU, except for the limitation on the date of publication (before May 24, 1994).
3. Copyright exception for orphan works
The amendment introduces the possibility to use orphaned works under the obligation to implement the Directive 2012/28/EU (the Orphan Works Directive, which was implemented after a delay). The rules introduced in this area do not deviate from the EU standard.
Therefore, a work is ‘orphaned’ pursuant to the Polish Copyright Act if a copyright holder of the work was not determined or found despite searches that were conducted in the manner precisely defined in the Act. However, there are additional obligations that need to be met in order to deem a work ‘orphaned’:
- it shall be a printed work, an audiovisual work (or a work incorporated into an audiovisual work), a work recorded in a videogram or a work recorded in a phonogram;
- it was published or broadcasted first time in the EU or the EEA area;
- it is in a collection of particular entities (among others libraries, archives, universities).
The reproduction of orphan works and making these works available to the public (in such a way that members of the public may access them from a place and at a time individually chosen by them—it means ‘online’ access) are allowed under following conditions:
- the use is permitted only in order to carry out the statutory tasks of mentioned entities, if these tasks serve the public interest;
- entities mentioned in point c. above shall be entitled to receive revenues from the use of orphan works, if revenues are intended to cover the direct costs of digitization and costs associated with making orphan works available.
Moreover, unpublished works may be used if they were made available with the right holder’s consent by other libraries, archives, universities.
4. Right to quote
The amendment specifies that the right to quote may be used regarding the artistic works, photographic works, and uses of polemics, parody, pastiche, and caricature. Moreover, a user may be allowed to unintentionally incorporate a work into another work, as far as the incorporated work has no meaning for the work in which was incorporated (it can be useful in cases such as this one).
5. Public lending right
According to the amendment, authors, translators and publishers may apply for compensation for lending the works they created, translated, or published via public libraries. Such remuneration is required by the Directive 2006/115/EC. It is worth noting that these costs will be covered not by local governments (who are responsible for funding public libraries), but from the state budget, with funds collected from taxes on gambling. Payments will be distributed by the relevant copyright collecting society determined by the Minister of Culture and National Heritage. The collecting society will be selected through a competition and awarded the payment collection and distribution responsibilities for a limited period of time.
6. Copyright exception for libraries
As a result of the amendment, the copyright exception for libraries, was substantially changed, in particular the list of entities covered under this provision. Now, not only libraries, schools and archives may use the right, but also museums, educational institutions other than schools, universities, research institutes, and scientific institutes of the Polish Academy of Sciences.
7. Domaine public payant
The amendment abolished the special fee paid by producers and publishers of works in the public domain. This fee was a form of ‘domaine public payant’ rarely occurring in contemporary law. Up until now, producers and publishers were obliged to pay a fee amounting to 5% of gross proceeds from the sale of copies of works to the Fund for Promotion of Creative Activity.
In general, the amendment to the Polish Copyright Act is a step in the right direction. First, there is now clarity that the educational exception may be used in e-learning. Second, it implements the EU copyright exception for orphan works and out-of-commerce works into Polish law. Finally, the domaine public payant fee has been discontinued.
But still we need further changes.
The Polish Copyright Act still has a number of unsolved imperfections, such as provisions related to licensing, computer software, and derivative works. The copyright exception for educational purposes is still not fully adapted to the 21st century (although we should note that this problem is not unique to Poland). In Poland, the educational exception is attached to the legal status of the entity that wants to benefit from the exception, and not the nature of educational activity. This is a clear example of the exception being shaped too narrowly, and it needs to change. Furthermore, potential beneficiaries of the educational exception are still not exactly sure what they are permitted to do with works that fall under the exception. Similarly, the copyright exception for orphan works is being considered in the same way as in the Directive 2012/28/EU – which also brings criticism from various cultural institutions that the implementation of a workable orphan works law has not adjusted to contemporary realities.
Changing copyright law is difficult. The more than two years of copyright reform discussions in Poland have been conducted alongside the EU copyright consultation, which is of course considering at least minor changes to law in Europe. In our opinion, we missed the chance in Poland to have a broader discussion on copyright philosophy because we focused too much on the specific regulations to be changed.