On the 16th of April, the Court of Justice (CJEU) delivered its decision in case C-401/19  The Republic of Poland v European Parliament and the European Council concerning Article 17 of the Copyright in the Digital Single Market Directive (the CDSM). The Polish challenge centred on the argument that Article 17(4)(b) and (c) require ex ante preventative monitoring of all user uploads by content sharing service providers and is incompatible with Article 11 of the European Charter of Fundamental Rights. As such, the CDSM is silent on the need for ex ante preventative monitoring. Rather, Article 17(4)(b) and (c) require such providers employ their ‘best efforts’ in accordance with ‘high industry standards of professional diligence’ to ensure the unavailability of protected works. Prior to the Polish challenge, the conclusion reached by commentators on Article 17 – in particular the academic community – was that these requirements pointed in one direction only – the adoption of ex ante filtering technology.  Naturally, this conclusion did not manifest in a vacuum. Indeed, it is well known that the concern of European policymakers to remedy the so-called ‘value gap’ underpinned Article 17 and a desire that content sharing service providers follow the likes of YouTube in deploying filtering solutions such as its ContentID system. Indeed, the final non-prescriptive wording of Article 17 reflects a compromise over concern that expressly mandating for filtering technology was a step too far in burdening content sharing service providers and their users alike.

The Polish Challenge: Throwing Down the Gauntlet to the Court of Justice

Against the backdrop of this implicit European policy embrace of algorithmic enforcement of copyright, the Polish challenge can be viewed as a throwing down of the gauntlet before the CJEU to make this implicit policy express, or annul Article 17 in part or in full. The choice facing the Court was to fill the policy gap leading to the compromise wording of Article 17 and justify upload filters under a fundamental rights framework or identify alternative preventative measures that would comply with the ‘best efforts’ criterion of Article 17(4)(b) and (c). In this respect, the challenge rested on the widely held assumption that upload filters would be incompatible, in particular, with the norms of freedom of expression – not least, because current filtering technology is incapable of making a sufficient distinction between legal and illegal uses of content relative to the exceptions and limitations under the copyright acquis. In light of this, the Polish challenge asserted that Article 17 was absent sufficient safeguards to protect internet user rights of freedom of expression. Recognising that Article 17 does mandate the use of upload filters, the CJEU rejected the Polish challenge, confirming the compatibility of Article 17 with Article 11 of the European Charter of Fundamental Rights and laying considerable emphasis on the safeguards that exist within Article 17.

These safeguards are intended to operate both ex ante and ex post. Under Article 17(7), prior to deploying a filtering solution, cooperation between content sharing providers and right holders, i.e. the provision of information from the latter to the former, shall not result in the blocking of legal content. Article 17(4)(b) directs that right holders provide relevant and necessary information, which according to the Court protects freedom of expression, as content sharing providers will not, in the absence of such information, make such content unavailable. Moreover, the Court reiterated that a system that cannot sufficiently distinguish between lawful and unlawful content, in particular content that would require a value judgement as to its illegality, would not be compatible with Article 11 of the Charter. In short, the Court narrowed the scope of Article 17 as applying only to manifestly infringing content. Article 17(9) establishes the first ex post safeguard, in the event that content is ‘erroneously or unjustifiably’ blocked, by requiring content sharing providers to put in place effective and expeditious complaint and redress mechanisms. Moreover, the Member States are to ensure there is access to out-of-court redress mechanisms and recourse to the courts. The Court was therefore satisfied that Article 17 did – contrary to the Polish claim to the opposite – contain sufficient safeguards to ensure compatibility with Article 11 of the Charter. (Many) questions however remain, not least, the question as to the ‘essence’ of freedom of expression in this context.

The Fact of Safeguards Tells Us Nothing About the ‘Essence’ of Freedom of Expression

Adopting a classic proportionality formula, the Court’s position is supported by its jurisprudence and Article 52(1) of the Charter. To this end, Article 52(1) allows for fundamental rights to be limited if justified and subject to minimum safeguards, while Promusicae  makes clear internet users’ fundamental rights can be limited under a balancing exercise to support copyright enforcement. In turn, the Court had little difficulty in establishing that the ‘essence’ of freedom of expression in the context of Article 17 was respected, in particular, by the minimum safeguards under Article 17(7)-(9). In doing so, it drew on rulings of the European Court of Human Rights that prior restraints on freedom of expression are permissible, subject to a particularly tight legal framework. However, the fact of safeguards tells us nothing about their substance, particularly their actual or likely efficacy in practice relative to protecting internet users’ right to freedom of expression. Following the ruling, the normative position for the Member States is to now answer the question of how these safeguards are to work to ensure internet users’ fundamental rights are respected. Therein lies the problem. In framing the essence of the right as unaffected by prior restraints and insulated by minimum safeguards, the Court fails to illuminate the degree to which such restraints may impact the right or indeed to what degree the minimum safeguards will need to be calibrated to protect freedom of expression.

The objection of course is that this should not be the function of the Court but rather the Member States. Indeed, the same argument could be made concerning the Court’s filling of the policy gap by reading upload filters into Article 17 generally. In short, we are where we are because of the Court’s ruling – and we now face a dilemma. Article 17 envisages that legitimate content should not be blocked. The Court reminds us that a system that cannot sufficiently distinguish legal from illegal content will not comply with Article 11 of the Charter. Yet, the remaining safeguards within the provision deal with this precise scenario, giving rise to questions that put into sharp focus the lack of guidance from the Court as to what the substantive essence of freedom of expression is, in this context. To this end, even with the Court attempting to limit the overall scope of such filtering, mistakes will happen. What then of redress?

What if Time is of the ‘Essence’ of Freedom of Expression under the CDSM?

Let us assume the content was legal but erroneously blocked – how long is too long for the block to be disproportionate in a scenario where there are apparent safeguards so that this should not have occurred at all? Does it matter? After all, a safeguard is not a guarantee per se and in this context if it were, imbalance would surely occur in suggesting blocks could never occur. But this is precisely the point – if under classic proportionality balancing a block can occur, the redress mechanism must still be effective and, as Article 17(9) provides, without undue delay and subject to human review. The irony is that the latter, unable to achieve the former on sufficient grounds under Article 14 of the eCommerce Directive, is one of the main arguments in favour of upload filters. What then is a proportionate delay where the most appropriate redress is removal of the block? The answer may well prove elusive with the task being to apply objective standards to expressions that are by their nature inherently subjective and relative to the context in which they are made.

Indeed, coming within an exception or limitation only tells us the category of the expression – it says nothing as to the value of that expression to the user relative to any myriad of factors, from the imprint of user personality to the temporal resonance with society and culture at the point of upload. When it comes to freedom of expression in this context, time and not the existence of safeguards may well be the starting point for discerning the ‘essence’ of the right. Indeed, as we move towards greater filtered futures, we need a surer understanding of the ‘essence’ of freedom of expression in this context beyond the existence of safeguards. For the implementation of Article 17 in light of the Court’s ruling, ex ante mechanisms that allow prior user input to challenge any potential block appear a necessary minimal mitigation measure to protect internet user rights. But even this delays the inevitable question where a block is imposed on what turns out to be legal content – to what degree is time of the essence?

If the normative position following the Court’s ruling is that Article 17 is to be implemented, the assumption is that some delay is inevitable in resolving an end user’s complaint. If we accept the essence of freedom of expression is contingent on the existence of safeguards that include redress then this is unproblematic. However, in balancing copyright and freedom of expression in this context, the most proportionate (and appropriate) redress is the expeditious removal of the block, relative to the factors described above. If an objective standard remains elusive in this context precisely because of those factors, can we find balance? The perspective of classic fundamental rights balancing would still suggest an answer in the affirmative; after all, an end-user can still avail of out of court settlement procedures and the courts. However, if it is accepted that in this context the ‘essence’ of the right comes down to individualistic, nuanced and relative factors, such avenues appear wholly inadequate where time is of the essence. Following the Court’s ruling, the question of time may be derided as an abstract consideration that sits in contrast to the normative position of implementation. However, on the contrary, it is precisely because of the Court’s ruling that difficult questions remain surrounding the balance between freedom of expression and copyright in this context. In protecting end-users, a useful starting point would be to identify what the real ‘essence’ of freedom of expression is, in this context. If, as the foregoing suggests, time is of the essence, this invites the question – is balance in practice, on these terms, possible under Article 17?

The post Poland, the CDSM and the Court of Justice: Still Searching for the ‘Essence’ of the Fundamental Right to Freedom of Expression appeared first on COMMUNIA Association.

The defendants in this case are the European Parliament and the Council of the European Union. In addition, the European Commission and the governments of France and Spain intervened in the case on the side of the defendants. Advocate General Saugmandsgaard Øe was also present at the hearing.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users.

On the face of it, the case is about Poland’s request to annul Articles 17(4)(b) and (c) of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Article 17(4)(b) and (c) effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms.

According to Poland, the key problem with the directive is the move away from active participation of rightholders (as initiators of removal requests in the context of notice and takedown procedures) and instead handing the responsibility of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they limit user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information under the Charter. Consequently, the problematic parts of Article 17 should be annulled by the Court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights. However, they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand, France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.

Best efforts obligation vs an obligation of result

At the core of the issue is the uneasy relationship between the obligation to make best efforts to prevent the availability of specific works contained in Article 17(4)b and the requirement in Article 17(7) that any measures implemented by platforms must not lead to the prevention of the availability of works that do not infringe copyright. In its interventions the Commission made it clear that it views Article 17(7) as an “obligation of result” that establishes the stronger legal norm, which therefore takes precedence over the weaker “obligation of best efforts” in Article 17(4). In the course of the hearing both the Council and the Parliament backed this assessment. In other words, all three EU institutions made the case that where there is a conflict, the protection of the fundamental rights of users must be prioritised over requests by rightholders to block the availability of their works.

In response to questions about the mechanism proposed by the Commission in its guidance consultation, both the Commission and the Council expressed their belief that this conflict of norms can be reconciled by a mechanism that limits automated filtering to “manifestly infringing” uses of works and that requires human review of any matches where there is any likelihood that the use is legitimate. Given the absolute nature of the result obligation in Article 17(7), this would further mean that user uploads must remain available while they are under review and can only be removed once a platform has established that a use is indeed infringing.

In making these arguments in front of the Court, the European Commission effectively doubled down on the approach outlined in its guidance consultation, which has recently been subject to heavy criticism from a group of seven national governments including France and Spain. The Commission’s position is further strengthened by the Council and the Parliament’s interventions in front of the Court, which provided support for the Commission’s reasoning. While it remains to be seen whether the CJEU will be convinced by these arguments (the ruling is not expected until the summer of 2021), it seems clear that the Commission will have to build its implementation guidance on this line of argument. This could have considerable impact on how Member States have to implement the provisions of the directive.

A temporary inconvenience vs irreparable harm

While formally on the same side of the case, the two Member States intervening in the case (France and Spain) brought forward an entirely different line of argument to defend the legality of the directive, which at key points contradicted the arguments brought forward by the EU institutions. According to France and Spain, the proportionality of any limitations of freedom of expression in the directive must be established in relation to the purported objective of the directive. Both France and Spain argued that the directive seeks to address a power imbalance between certain platforms (online content-sharing service providers) and rightholders by bringing the first into the scope of copyright. In simple terms, this is done by establishing that these platforms are directly liable for communication to the public when they make available works uploaded by their users. As i have argued elsewhere, this view is based on a misunderstanding of the “true intent” of the legislator on the part of those national governments, who seem to consider the significant changes that have been made to the text of Article 17 from its inception to its final adoption to be a historic accident rather than an expression of the legislator’s will to protect users’ fundamental rights.

While both Member States concede that their interpretation of Article 17 will ultimately result in situations where measures to prevent the availability of works limit the freedom of expression of users, they argue that in such cases the ex-post complaint and redress mechanism contained in Article 17(9) provides sufficient protection for users’ rights. Both Member States disagreed vehemently with the position of the EU institutions and argued that any conflict between the fundamental rights of rightholders and users must always be resolved in favour of rightholders. Both argued that the harm to rightholders that can be caused by temporary availability of infringing works on platforms is much greater than any harm to users caused by the temporary blocking of non-infringing uploads. They further claimed that while infringing works could “go viral in mere seconds” causing “massive economic harm” to rightholders, requiring users to file complaints when non-infringing uploads are blocked and keeping these uploads offline while the complaints are reviewed would merely constitute a “temporal inconvenience” that is justified given the purported overall objective of the directive to strengthen the position of rightholders vis-a-vis platforms. Consequently, both France and Spain reject the mechanism proposed by the Commission in its guidance consultation as “incompatible with Article 17”.

It remains to be seen how far the Court will be convinced by this line of argument that hinges more on a proclaimed “original intent” of the directive than on its actual text. It is clear that France and Spain are effectively fighting a two-front battle. On one front, they argue that the Polish case is without merit. On the other, they attempt to undermine the EU institutions’ arguments on why the Polish case is without merit in order to defend their own maximalist interpretation of the provision. This contradiction was not lost on the Polish Government, which in its final remarks observed that the interpretation of Article 17 put forward by the Commission and the Council goes directly against what France has argued and that “this clearly shows that there is a problem with Article 17 as such”.

Questions by the Court

A substantial number of the questions from the Court and from the Advocate General focussed on better understanding the relationship between the best efforts obligation in Article 17(4) and the results obligation in 17(7) and the mechanism proposed by the Commission in its guidance consultation. Particular attention was paid to the question of whether uploads must remain available while they are under review or should be blocked until their legality has been confirmed. This strong focus on the guidance consultation almost gave the impression that the hearing was not so much held for the purpose of determining whether the contested provisions must be annulled, but rather to understand if the mechanism proposed by the Commission would achieve an internal balance of Article 17 that offers sufficient protection for the fundamental rights at stake.

One key weakness shared by all parties defending Article 17 was a total failure to point to any measures other than upload filters to effectively comply with the best efforts obligation contained in paragraphs (4)(b) and (c). Despite repeated questions from the bench, none of the parties could name alternatives to the use of filtering technologies. The Commission made a weak attempt to list a number of different methods for filtering (fingerprints, hashes, metadata, keywords), the Council invoked artificial intelligence (without providing any specifics) and Spain pointed to “fuzzy hashing”. In the end, none of the interventions managed to undermine the Polish claim that (at least given the current state of technology) the only effective way to comply with Article 17(4)(b) and (c) is the use of filters. As Poland pointed out in its final statement, the different technological approaches mentioned constitute different types of filtering technology, rather than alternatives to filtering technology.

A final set of questions revolved around the prohibition of general monitoring obligations in Article 15 of the E-Commerce Directive. The Court showed interest in the relationship between the blocking obligation outlined in Article 17(4) and the ban on general monitoring obligations contained in Article 17(8). On this issue, the AG seemed particularly sceptical that Article 17(4)(b) and (c) would not result in general monitoring. At one point he called the European Parliament “naive” for doubting that “major rightholders would submit long lists with 1000s of works to be blocked” as soon as the directive were in effect.

A long winter wait ahead

Based on yesterday’s hearing, it remains plausible that the CJEU might strike down the contested provisions in Article 17. If it does, this would likely be on the grounds that they constitute a general monitoring obligation in violation of the E-Commerce Directive and, consequently, the Charter of Fundamental Rights.

It is also conceivable that the Court could identify minimum criteria for the protection of the fundamental rights of users. While these could fall along the lines of the mechanism put forward by the Commission, this is far from certain at this stage. A decision along those lines could, however, turn elements of the Commission guidance from non-binding recommendations to legal obligations on Member States.

Given that a ruling will not take place until after the implementation deadline for the directive (the AG opinion is due on the 22nd of April 2021 which is only 6 weeks before the implementation date), the Commission will need to publish its guidance before the Court has ruled and Member States will need to make implementation choices without having access to the Court’s judgment.

The post CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work appeared first on COMMUNIA Association.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”

According to Art. 263 of the Treaty on the Functioning of the EU, Member States may bring an action for revision of an EU law on the following grounds:

• lack of competence,
• infringement of an essential procedural requirement,
• infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.

The text of the challenge has not yet been made public. We can only assume that the complaint by the Polish Government is based on the last circumstance.

In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear mongering or disinformation.

Former MEP Catherine Stihler, a staunch opponent of many aspects of the reform, reacted positively to the news. “This is an extremely welcome move by Poland which could save the internet from this deeply unpopular copyright crackdown,” she said, in her new capacity as CEO of the NGO Open Knowledge Foundation. Various NGOs have been waiting for some time for the independent body to resolve the issue of compliance of Article 17 of the new directive with the Charter of Fundamental Rights.

Unfortunately, the political context of the challenge raises some questions. For months, the ruling PiS party has been brandishing its opposition to copyright as an election argument against the biggest opposition party, Civic Platform. It should be underlined that the complaint was submitted two days before the elections of the European Parliament. This fact been used as an argument in the political debate just before the election—putting an unnecessary political spin on an issue that should be non-partisan.

We hope that the text will be published immediately and will lead to a substantive debate about the compliance of the Directive with the Charter of Fundamental Rights. Our member, Centrum Cyfrowe Foundation, is currently trying to get access to the complaint using freedom of information requests, so far without success.  

The post The Copyright Directive challenged in the CJEU by Polish government appeared first on COMMUNIA Association.

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:

1. the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
2. the Directive 2006/115/EC (the Directive on rental right and lending right); and
3. 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:

1. 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;
2. 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.

1.2. E-learning

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;

nor

• placed on the market in the form of copies in number satisfying rational needs of customers;

nor

• 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: 

1. the exception applies only to printed works published in Poland for first time before May 24, 1994;
2. the exception applies only to archives, educational institutions, universities, scientific institutions, and cultural institutions;
3. the use of works under the exception is permitted provided conclusion of contractual obligations with a copyright collecting society;
4. 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;
5. 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’:

1. 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;
2. it was published or broadcasted first time in the EU or the EEA area;
3. 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:

1. the use is permitted only in order to carry out the statutory tasks of mentioned entities, if these tasks serve the public interest;
2. 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.

The post Summary of 2015 amendments to the Polish Copyright Act appeared first on COMMUNIA Association.

Since the role of CCSs in collective rights management and shaping of copyrights is crucial, the European Union adopted the Directive 2014/26/EU on collective rights management and multi-territorial licensing of rights in musical works for online uses in February 2012 (see our previous coverage here). The transposition date for Member States was April 2014. The directive sets up a common framework for financial reporting. CCSs have to draw up and publish an annual transparency report including detailed accounts, financial information, and a special report on the use of the amounts deducted for purposes of social, cultural, and educational services.

Poland is an example of member state that introduced the obligation of disclosing the CCS financial data long before the directive implementation deadline: the first reports were submitted in 2011. Centrum Cyfrowe, a member organization of COMMUNIA, conducted the analysis of the financial and narrative reports of Polish CCSs for the years of 2010-2013. The CCSs were obliged to disclose these reports for the study.

The authors of the report attempted to answer the question of whether the existing mechanism of operation of copyright collection societies is efficient, as these entities are of high social importance. The report also addresses the question of whether the current activities of CCSs fulfill their statutory obligations. An additional task for the authors of the report was to determine the extent to which the widely available information regarding CCSs allows the public to understand the principles of their functioning.

The key findings of the report are as following:

• years may pass from collection until distribution of royalties – the period between the collection of funds and their transfer to rightsholders may take up to 6 years;
• capital income and economic profitability weaken the motivation for repartition since CCSs derive financial income (interest on the capital) from due funds which have not been distributed to copyright holders;
• the costs of collective copyright management are higher than it appears from their presentation in the financial statements;
• only CCSs members influence the principles of repartition.

Authors of the report claim that the key issue is to assure is that in the process of exercising statutory authorizations there is no conflict of interest between economic profitability and efficient repartition. Moreover, they recommend that the Ministry of Culture and National Heritage act as the authority supervising societies and should oblige CCSs to:

1. implement a clear-cut and comprehensive manner of reporting on the costs of servicing copyright collection so that there are no doubts as to how expensive that system is and in order to make it possible to optimize collective copyrights management in the future;
2. apply any instruments available (taking into account new technologies) in order to make the system of redistribution of the funds collected from the market by CCSs clear and transparent.

The last point is in line with one of COMMUNIA’s key demands during the discussion of the Directive on collective rights management: Copyright Collection Societies should be required to publish information about their membership and the repertoire that they represent through open,  machine readable interfaces.
You can read more about the conclusions of the report in the abstract (in English).

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But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.

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