The Government Legislation Centre has announced on its website that the latest draft Act amending the Copyright and Related Rights Act has been submitted to the Standing Committee of the Council of Ministers. The draft does include some of the changes expected by the artistic community, e.g. concerning royalties, however, largely falls short of the expectations of authors. They have therefore sent an open letter to the Prime Minister,[1] expressing their concerns and highlighting the main issues for them regarding the conditions for the use of their content, including in the context of machine learning by artificial intelligence.
The signatories of the letter stress that the Act will deprive creators of cultural works of the resources to which they are entitled, thus significantly reducing cultural diversity and media pluralism, and that the proposed changes will strengthen the position of technology tycoons, thereby consolidating their position in the digital market at the expense of indigenous culture. In addition, authors point out that the proposed Act in its current form contradicts the intentions of Directives of the European Parliament and of the Council (EU) 2019/789[2] and 2019/790[3] of 17 April 2019, the implementation of which has been delayed by three years.
Why has the latest draft caused such controversy among authors?
Royalties for authors
This is the latest instalment in the fierce debate on the amendment to the Copyright and Related Rights Act.
As a reminder, most of the comments on the previous draft (dated 14 February 2024) focused primarily on royalties.
Both audiovisual and music authors have argued that the current version of Article 70 of the Act is not adapted to the current market situation, as it does not take into account the streaming sector, which is now the fastest growing market.
The draft does partially solve the question of royalties, as the newly added paragraph 5 of Article 70 reads: fair remuneration for making a work available to the public in such a way that anyone can access it from a place and at a time individually chosen by them. An analogous right is also granted via Article 861 to performers of a musical work or a work comprising text and music. However, this is only a partial solution, as there is still no adequate regulation of the so-called rebroadcasting royalties.[4]
If the proposed rule is enacted, authors will be able to seek remuneration from platforms such as Netflix, HBO Max or Disney+, either on their own or through the relevant collective management organisation.
Taking account of artificial intelligence
The flashpoint for the open letter was the new Article 26(3)(1) which states: It shall be permitted to reproduce disseminated works for the purposes of text and data mining, unless otherwise stipulated by the rightholder.
The previous version read: It shall be permitted to reproduce disseminated works for the purposes of text and data mining, except for the creation of generative models of artificial intelligence, unless otherwise stipulated by the rightholder.
Implementation of the provisions in their previous form would have resulted in incomplete transposition of EU legislation into Polish law.
Some of the concerns of artists about their future in relation to generative artificial intelligence are justified. For this reason, the legislator has introduced an opt-out mechanism that allows the author to control the use of their work in machine learning.
On the other hand, the adoption of the former wording would have led to a decrease in Poland’s competitiveness on the artificial intelligence market. Start-ups as well as research centres using AI would have been forced to develop their tools in foreign jurisdictions and, as a result, could have faced difficulties in obtaining the necessary funds for development.
The draft is currently at the assessment stage. Changes can be followed here.
Questions? Contact us
[1] Open letter to the Prime Minister of the Republic of Poland, https://www.iwp.pl/wp-content/uploads/2024/04/ List-do-Premiera-Donalda-Tuska-20240328-z-potw.pdf
[2] 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 (“Satellite and Cable Directive II”, hereinafter: “SATCAB Directive II”)
[3] on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (“Digital Single Market Directive”, hereinafter: the “DSM Directive”)
[4] Read more: https://www.zasp.pl/aktualnosci/tantiemy-dla-aktorow-2/
