At the end of March 2023, the EC filed an action with the CJEU against Poland for failing to implement the copyright directives.
The EC’s decision was due to Poland not declaring the way in which it would harmonize its laws with the Directive on copyright and related rights in the Digital Single Market (2019/790)[1], and failing to notify the EC of transposition in full of SatCab II, a directive applicable to certain online transmissions and retransmissions of television and radio programmes (directive EU 2019/789)[2]. Work on the Polish bill implementing those directives is still in its early stages – the bill has not been submitted to the Polish Sejm or adopted by the Council of Ministers.
The DSM and SatCab Directives were to be implemented by 7 June 2021. The first legislative proposal implementing them was produced by the Minister of Culture and National Heritage. It was published and submitted for public consultations more than one year behind schedule, on 20 June 2022. The authors of the proposal say that the reason for the failure to meet the deadline was that the EC did not publish guidelines on correct implementation of article 17 of the DSM Directive until 4 June 2021. The delay on the part of Polish lawmakers might also be related to waiting for the CJEU to review Poland’s complaints regarding article 17 of the DSM Directive. This action was dismissed in a judgment of 26 April 2022[3].
Work is now underway on the next version of the bill, drafted by the authors on 23 March 2023. When passed, the long-awaited national laws will have a major impact on the structure of copyright law. For instance there will be another form of permitted use – text and data mining, as well as a new related right, which is the right of press publishers to online use of their press publications. There will also be new rules which are especially controversial, on communication of works by information society service providers. Polish lawmakers also provided for the option of extended collective licencing. In the latest version of the proposal, a provision that has aroused great interest was retained, entitling co-authors of audiovisual works to further payment for use of their works in an additional field of use – public communication of works for viewing on demand. This is a means for lawmakers to adapt article 70(2)(1) of the Act on Copyright and Related Rights to the market existing today, and expand the laws to include other uses, such as films on VoD platforms.
The EC has filed actions with the CJEU in comparable cases of failure to implement the two directives, against Bulgaria, Finland, Latvia and Portugal, and also against Denmark, in relation solely to the DSM Directive. Hopefully the measures taken by the EC will cause member states to implement the relevant laws as soon as possible.
Author: Jacek Piasta
Footnotes
[1]Directive (EU) 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.
[2]Directive (EU) 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.
[3] Judgment of the Court, Grand Chamber, of 26 April 2022, C-401/19, brought by the Republic of Poland v European Parliament and Council of the European Union, LEX 3336950.