2015 Polish “Indian Summer” Changes in the Copyright Regulations

Similarly to prior years, we have a beautiful Indian summer in Poland which brings changes to our copyright law. On the 11th September 2015, the Polish Parliament passed a new legal act, which introduces some significant changes into the Polish Copyright Act. Some of them, were required by the European law; other ones were intended to meet expectations of members of the Polish domestic legal market. This article will present the most notable, newly introduced, amendments.

Significant changes have been introduced into regulation of the quotation right, which became now less restrictive. The Polish legislator decided to open up the previously closed catalogue of lawful purposes of quotation. This adjustment was made in line with the requirements of EU copyright law. According to the current provision, it is allowed to quote parts of the distributed works and
distributed photographs or even small works in their whole, in a scope justified by the purpose of quotation, such as an explanation, polemic, critical or scientific analysis, teaching or purposes of a literary genre (art. 28). The issue of 'purposes of a literary genre' is clarified in the newly introduced article 29(1), which states that it is allowed to use works for purposes of parody or caricature, in a scope justified by laws of those literary genres.

Interesting is also the newly established article 29 (2). The aforementioned regulation states that: "It is allowed to unintentionally include a protected work into another protected work, provided that the included work has no meaning for the work, in which it had been included." That means, for example, that there is no copyright infringement when a painting or a photography is accidentally included in a movie or TV series, somewhere in the background, as a insignificant and unintentionally placed part of the scenery. Another example can be a situation, when somebody is recording a podcast or radio broadcast and one does not realise that a certain song is played in the background. That sort of unintentional song usage should not be considered an infringement either, provided that the song has no special meaning in the light of the content of the broadcast.

Additionally, some big changes in the Polish Copyright Act were introduced as a result of implementation of the regulations of EU Directive 2012/28/EU, with regards to the status of so called orphan works. This constitutes as a complete novum under the Polish copyright law - the subject of orphaned works hadn't been regulated there before. The Polish legislature decided to proceed with an exact transposition of the Directive's regulations and, contrary to the previous announcements, didn't add any significant rules which would go beyond what was provided in the aforementioned European legal act.

The third notable change in the copyright law in Poland relates to the out-of-commerce works and their usage. Out-of-commerce works are now defined as works published in books, journals, magazines or other forms of publication in print, if those works are not accessible for readers in commerce with consent of the rightholders, neither in sufficient amount of copies, or through making them available to the public in a way providing the access to them in the moment and place of receiver’s choice. Forms of usage allowed are specifically named. Those are the following examples: reproduction and making the work available to the public in a way providing the access to said works in the moment and place of one's choice, so basically in the internet. The aforementioned regulation applies only to the works published for the first time in Poland before 24 May 1994.

The rights to use the works out-of-commerce can be granted only to a specific scope of subjects, namely: archives, education institutes, universities, scientific units and cultural institutes. It’s required for those subject to enter into a contract with a collecting society. An additional limitation has been foreseen in the context of the purpose of using the works out-of-commerce. Such usage is allowed only if it serves realisation of the statutory tasks of said subject, and only if those tasks serve the public interest. Any income gained by such usage of works out-of-commerce must be allocated to cover the costs of digitalisation and making the out-of-commerce works available to the public.

More over, the significant changes refer to the rules of determining an amount and payment of the fee for lending copies of a work by public libraries.

Some smaller amendments were made relative to some regulations of free usage of specific kind of works, for example, political speeches or other public statements (art. 26(1)) as well as of usage of works in some very specific situations, especially during national festivities or religious celebrations (art. 31).

The above review of the changes in the Polish copyright law introduced by the legal act dated 11th September 2015 is not exhaustive. However, it should give a good overview and can be used as an useful starting point for further analysis. Only the time will show how those newly introduced regulations will work in the everyday practice of the Polish legal system. Next changes in the Polish copyright law will apply to broadcasters powers in the field of retransmission their own produce, and probably can be expected with the coming spring.

Olga Stańczyk - lawyer in Lewandowski Gradek Lewandowska IPLaw Office

Copyright Lewandowski Gradek Lewandowska IPLaw Office
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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