On 7 August 2015 the Senate adopted changes to the so called “big” amendment to the Copyright Law. It is one of three amendments to the Copyright Law which the Polish legislatur e has recently developed — along with a “small” amendment of 17 July 2015 and an amendment regarding broadcasting by radio and television stations.
“The aim of the amendment is to provide — within the limits set by the EU and international law — the easiest and broadest possible access to works and objects of related rights” — said Andrzej Wyrobiec, the Vice Minister of Culture and National Heritage.
The amendment provides for the implementation of a number of provisions within the Law on Copyright and Related Rights which were set by the EU and required implementation in 2013-14, as well as for amendments already implemented but which — as per an analysis of their application and the actual needs of the cultural policy — require changes permissible within the scope of the EU parliament. The changes introduced in the “big” amendment can be divided into four main areas:
- optimisation of the provisions in terms of permissible public use;
- introduction of fees for library lending;
- enabling the use of so called “orphan” works;
- introduction of a mechanism for using works currently unavailable on the market.
In this article we will indicate the most important changes regarding permissible public use. The draft amendment along with its justification, as well as the changes adopted by the Senate can be found in the appendices below.
Permissible public use
The aforementioned amendment will considerably reconstruct the existing forms of permissible public use. With exception to changes which are purely organisational or for clarification, are related to economically irrelevant reproduction, or constitute part of a technical process or short recordings by radio and television stations, there are substantial modifications to the exceptions currently provided for under the copyright law.
The most important changes include extending permissible use for informational purposes to political speeches and discussions delivered in public forums. As well as using portions of public speeches, lectures and sermons provided this does not include the right to publish a collection comprised of this type of information. Presently, the possibility to use public speeches has been limited to the press, television and radio only.
The amendment also provides major changes in terms of the so called “right to quote” . Under the recent wording of the Act, it’s permissible to quote complete works, portions of published or minor works in full within the scope of explanation, critical analysis, or for educational purposes within the rights governing a specific creative activity. Thus far, the provision’s restrictive wording limiting the extent to which quoting is allowed has been mitigated by liberal interpretation. To date the wording has raised many doubts with regard to the inclusion of audiovisual and photographic works. The amendment in its current form clearly extends the right to quote for both audiovisual and photographic works. Further, it opens the character of purposes for use by providing an exemplary list of premises justifying permissible use within the right to quote. The amendment also clarifies the ability to utilize works in parody, pastiche and caricature within the scope of rights governing these types of creative activity. The amendment’s important innovation allows for the so called “incidental use” of works. According to the draft, it is permissible to unintentionally include a work within another work provided that the included work has no importance to the work in which it is included. Therefore, permissible incidental use will depend on compliance with two assumptions: 1) the lack of importance of the work for the material in which it is included; and 2) the lack of purposeful association of the included work with the material in which it is included. The amendment may be exceptionally important to entities operating in the audiovisual market because it allows for unintentional use of the contents of works that are covered by copyright protection (e.g. being part of the background of a picture or painting) without negative consequences — especially regarding the potential hindrance of the use of such works. However, the contents of the amendment raise numerous controversies in terms of its interpretation relating to the premise of unintentionality. We must wait for the courts to decide solutions to such controversies and establish a definitive position.
The legislature is planning to surrender on the subject of legal licenses for information aggregators . So far, such legal licenses have been relied on by media monitoring or press clipping services.Other significant changes planned and worth mentioning are:
- enabling libraries, archives, museums and schools to create digital copies of works for the purpose of completion, protection and retention of its own collections;
- enabling educational and scientific institutions to use works in their digital versions within the scope of remote teaching — provided it targets a predefined closed group of receivers;
- extension of the possibility to use works during religious, school and national events; and:
- enabling marketing of public exhibitions and internet sales as a result of abandoning the use of the phrase “copy of the work,” understood as a physical, material and analogue copy of the work.
Although there have been controversies regarding particular solutions, the planned amendments in terms of permissible public use are undoubtedly an important step towards enabling a wider use of works with the exclusion of copyright monopoly and adaptation of solutions to the digital reality. However, it should noted such changes are being implemented with considerable delay, at a time when EU discussions are being held to redraft the copyright law— including within the scope of permissible use.