New proposal for amendment of the Act on Copyright and Related Rights and certain other acts published
A new proposal was published today by the Government Legislation Centre for amendment of the Act on Copyright and Related Rights and certain other acts.
The act is intended to implement
- Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM), and
- Directive (EU) 2019/789 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 (SATCAB)
The changes proposed in the new version affect issues such as
- transmission of works;
- retransmission and distribution of works;
- online content-sharing service providers;
- radio and television programs;
- television broadcasting of sports events;
- use of works that are not commercially available;
- the right to press publications as part of digital services.
For more about the new proposal, go to – link.
Standpoints submitted in public consultations on the proposal for amendment of the Act on Copyright and Related Rights have been made public, reaching as many as 66 in number!
The Ministry of Culture and National Heritage has published long-awaited opinions of institutions with a stake in the formulation of this law.
The New Technologies Law Association (SPNT) has also presented its standpoint. Attorney-at-law Agnieszka Wachowska, working with Mikołaj Sowiński, are coordinating the work of the IT working group.
While the amendment is mainly concerned with implementation of the DSM directive and SATCAB II, the amendment is interesting due to the proposed rewording of art. 77 of the Copyright Law, which makes certain provisions non-applicable to software. The list of the provisions non-applicable to software has been expanded to include art. 68 of the Copyright Law, which deals with license agreement validity periods and notice periods.
Six institutions commented on the changes regarding non-applicability of art. 68 of the Copyright Law to software:
- half of these institutions criticized the proposal;
- the Jagiellonian University, the Association for the Protection of Industrial Property, and the New Technologies Law Association (SPNT) stated that long-term licenses are needed for computer software, and that this is controversial among scholars due to art. 68 of the Copyright Law.
- the latter two institutions proposed during the consultations that art. 68(1) of the Copyright Law should continue to apply, but that art. 68(2) of the Copyright Law (under which an agreement concluded for more than five years is considered an agreement concluded for an indefinite period) should not apply.
The Ministry of Culture and National Heritage published a report on the public consultations in addition to the submitted standpoints. One statement made in the report is that the wording making art. 68 non-applicable to software was included in error (the error concerns art. 68(1) and this will be rectified in a new version).
It is a good thing that the Ministry of Culture and National Heritage noted the standpoint of the New Technologies Law Association.
My personal view is that even at the moment, a long-term (permanent) software license may be granted which is non-terminable under the law as it stands today, while I realize that not all lawyers agree, and there is a need on the market for agreements of this kind. Thus equally, if this was stated by lawmakers definitively, one result would be greater certainty of legal solutions and a lower instance of contractual monstrosities with a non-termination requirement.
On 15 November, 2022, the government approved a proposal to amend the Electronic Communications Law (PKE)
The principal aim of the PKE is to incorporate the European Electronic Communications Code into the Polish legal system. The deadline for implementing the code was December 2020. Due to Poland still not complying with this obligation, in April 2022 the European Commission brought an action before the CJEU against Poland and nine other countries for not implementing the code.
In addition to harmonization with the European Electronic Communications Code, the PKE is also intended to replace fully the current Telecommunications Law, and this means that the new regulations will cover all aspects of the functioning of the electronic communications market in Poland. Therefore, other electronic communications service providers will be subject to the future laws, in addition to the conventional telecommunications operators.
Work on the act has been going on for more than three years. The first proposal for the PKE was published in July 2020.
The proposal approved by the government last week is now the sixth proposal for implementation of the code. It has not yet been published in full.
Work on the wording of the act will continue in the Sejm. The TKP IT-Tech team is continually monitoring work on the PKE, and will provide regular updates.
Prof. Dr. Jan Byrski, Professor of the Cracow University of Economics, joins the editorial team at "Insurance Law"
We are very pleased to announce that Dr. Jan Byrski, Professor of the Cracow University of Economics, has joined the editorial team at “Insurance Law”. The quarterly was first published in 1994, and addresses legal and economic aspects of commercial insurance and related civil, commercial, financial, and administrative law issues.
As of 1 January, 2023, influencers will no longer be able to advertise publicly products intended only for users who are non-laypersons.
A layperson is defined in the act as an individual who does not have any formal qualifications in the relevant area of health care or medicine.
The new rules will apply for instance to specialist equipment such as implants, laser-based products, or even hyaluronic acid.
Up until now, the cosmetic surgery industry has been keen to post information about its services and results on social media. Manufacturers, distributors, and clinics have frequently promoted their services or preparations through celebrities and influencers with a wide audience, giving them discounts or even surgery for free in return.
The laws due to come into force should induce the people concerned to review their business relationships with specific brands – breaches of the law in this respect will lead to severe fines even reaching PLN 2 m.
The full text of the Act on Medical Devices of 7 April, 2022, is available here.
EC new standard contractual clauses (SCC) for data transfer to third countries were adopted in June 2021. Institutions that transfer personal data to third countries are required to replace the current clauses, based on the old rules, with the new updated templates published by the EC by 27 December, 2022. A range of measures are required for controllers or processors to implement the SCCs correctly, such as selecting the appropriate clause module.
Even this coming weekend, more than 400 students who are members of 15 ELSA Poland Local Groups will come to Kraków. At the event, the students will be able to gain practical and theoretical knowledge on academic and professional development, soft skills, and the association’s internal know-how.
The event will begin with a panel on the “Bar Training Campaign” (Akcja Aplikacja), and will feature Agnieszka Pazdan, who will talk to students about her career path, choice of bar training, and how the bar training was conducted.
We are grateful to ELSA Poland for the opportunity to pursue this initiative together. We wish all of the participants very productive training.
We now know the winner of the TKP Professor Elżbieta Traple prize for the best master’s and PhD thesis on copyright and related rights.
The prize was awarded to Jan Jastrzębski M.A. for his master’s thesis on Protection of Conceptual Art Works under Copyright Law and the Structure of Personality Rights, submitted at the Faculty of Law and Administration at the University of Warsaw (WPiA UW).
Sincere congratulations to the winner and his study tutor – Professor Krystyna Szczepanowska-Kozłowska.
Ten or more master’s theses on copyright law were submitted for the prize. Congratulations to all the contenders for the high quality of the theses. We wish you continued success in your studies and careers.
This is the first document of this kind to be published by a regulator in Poland!
The document is intended to provide general rules on labeling advertising content on social media, with practical examples. The Recommendations are intended to help influencers, advertising agencies, and advertisers in their daily activities.
What is in the Recommendations?
- information provided by the President of UOKiK clarifying which activities constitute commercial contracting
- tips on when to use certain labels, such as advertising or gift
- rules on stating that content is self-advertising
- dos and don’ts, with specific instructions on the form of labels
- examples of labels to be used on platforms such as Instagram, TikTok, or YouTube
- the legal consequences for failing to label content on social media properly
- products and services that are regulated further with respect to advertising or for which advertising is prohibited
The UOKiK President Recommendations were produced in collaboration with representatives of a large portion of the influencer marketing sector – the Association of Employers of the Internet Industry Interactive Advertising Bureau (IAB) Polska, the Marketing Communication Association (SAR), and the Advertising Council.
Contributions were also made to the document by the Faculty of Journalism, Information, and Book Studies at the University of Warsaw, the Department of Press Systems and Press Law at the Adam Mickiewicz University Faculty of Political Science and Journalism, and social media users who were able to give their views on labeling advertising on social media.
TKP also played an active part in the drawing up the Recommendations, in continuation of its work in advising on production of the Interactive Advertising Bureau (IAB) Polska Influencer Marketing Handbook.
In August this year, the National Broadcasting Council released a statement of its standpoint on a la carte (pick-and-pay) services. The standpoint has had an important impact on the operations of broadcasters and television providers (cable providers, satellite platform operators, IPTV providers, or also OTT platform operators).
What is a la carte (pick-and-pay)?
This is a service in which customers are provided with single television channels that are not part of a package.
A customer that chooses this system pays for access to a particular TV channel from among those in the provider’s product range.
At the moment, the dominant model for distributing television channels is payment of subscription by customers to television packages. Every package contains specific channels.
The standpoint of the National Broadcasting Council
In addition to providers charging for subscription to packages, the National Broadcasting Council has proposed that providers give customers the option of subscribing to individual channels.
In the view of the National Broadcasting Council,
by choosing the channels they wish to view and access, a customer will have access to subscription television at a lower cost.
The National Broadcasting Council has honed in on the problem that when dealing with broadcasters or the firms that license access to channels, as the case may be, providers are usually unable to acquire licenses to distribute single channels, and have to purchase rights to full packages. Usually, the broadcaster has an overwhelming influence over the contents of the package).
The National Broadcasting Council sees the remedy in
passing legislation preventing broadcasters from making conclusion of an agreement with a provider for distribution of a channel conditional upon conclusion of an agreement for a channel or set of channels other than the channel requested by the provider. In addition, the broadcaster would not be permitted to unfairly differentiate between the prices for giving the distributor access to the same channels or packages containing the same channels.
The President of UOKiK is also examining the channel package issue, and instituted antimonopoly proceedings against two telecommunications operators in 2021.
On September 14-16 2022 we have launched CEE Legal HUB BootCamp 2022 that took place at the Google Campus for Startups in Warsaw.
Google Legal HUB is a cross-border project that has now been held for seven years. Under the project, Traple Konarski Podrecki & Partners coordinates ongoing legal services for clients, based on a long-term partnership with the top independent CEE law firms.
Together, we will be examining many topics in discussion panels and workshops, including:
- Regulatory aspects of Google’s operations, the forthcoming regulations, and how we will deal with them (Arnd Haller, Northern and Central Europe Legal Director)
- The main procedural challenges in our region (Ian Burton, Senior International Litigation Counsel)
- Relationships with law enforcement agencies and data disclosure policy (Kate McCormack, Google Associate Security Counsel)
- An update on how the cloud computing sector in the CEE region is managing, and our strategic goals (Magda Dziewguc)
We will also be hosting our colleagues from Ukraine, who will share with us their experiences over the last six months – we will attempt to gain a better understanding of what life is like in Ukraine today, the daily challenges, what Google is doing in Ukraine, what the legal challenges are, and what we can do to help.
We would like to express our gratitude to all of the partner firms and guests for coming and playing a part in creating this very special event!
The Poland business run has now been held! This year, as they do every year, TKP teams took part in the Poland Business Run charity event. The run is held to raise money for people dealing with disabilities on a daily basis and are in need of support.
Bravo to the participants!