On 20 November 2015, Poland’s new copyright law entered into force bringing library services in Poland into the twenty-first century.
The centrepiece for libraries of the new legislation are provisions that enable digitization for socially beneficial purposes, such as education and preservation of cultural heritage. The new law also implements two important European Directives.
Crucially, the library community participated for the first time in high-level policy discussions on copyright, a fact reflected in many places in the public consultation report that accompanied the new draft law. As a result, librarians became recognized as important stakeholders in a national reform process.
In a project supported by the EIFL Copyright and Libraries Programme, Barbara Szczepanska, Project Manager, has been at the forefront in defining the library copyright position, building the evidence base, and ensuring that librarians participated fully in the consultations.
Cooperation with policy-makers will continue into the future as regulations implementing the new copyright law are put into place for the final phase of the legislative process, and as new issues emerge.
Read the background, the main achievements and follow the timeline of the reform process.
“The EIFL project grant in 2012 kickstarted library engagement in legislative reform. It got librarians in Poland thinking about copyright for the first time. It enabled production of the first position paper on library copyright issues that was submitted in the Ministry of Culture’s public consultation. Since then we have built on the work, and our position has evolved. But without doubt, support from EIFL got the process going.” - Barbara Szczepanska, Project Manager, Library and Information Services Manager at Hogan Lovells (Warsaw).
In 2004, the Law on Copyright and Neighbouring Rights was amended when Poland joined the European Union. While there was a rather good list of limitations and exceptions, they were badly in need of updating for the digital world.
In February 2012, following the declaration that Poland would not join the proposed Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral treaty being negotiated between industrialized nations, Donald Tusk (then Prime Minister of Poland, now President of the European Council) promised to continue the debate on digital freedoms.
Consequently in March 2012, the Ministry of Administration & Digital Affairs announced the formation of five task forces to work on legislative reforms essential for the growth of a robust digital society in Poland, such as rights for Internet users, safeguards for privacy, and copyright law reform.
The consultation process on copyright law reform was launched by the Ministry of Culture in the spring of 2013 with the Copyright Forum, a multi-stakeholder group to lead discussions on the future shape of Poland’s copyright law.
It was essential that librarians took part, for one key reason: to ensure that libraries in Poland can fulfill their social and public responsibilities in the twenty-first century.
Objectives for copyright law reform
In June 2012, the Centrum Cyfrowe Projekt Polska and EIFL partner consortium, the Poznan Foundation of Scientific Libraries, joined forces with four main objectives:
- to raise awareness of the importance of copyright limitations and exceptions and the role of libraries in contributing to a creative knowledge society and economy;
- to advocate for well-crafted limitations and exceptions that serve society to policy makers, national copyright experts, members of parliament, journalists, the wider library community, as well as to the general public;
- to ensure that librarians participated in the debate on copyright law reform in Poland, and
- to produce a draft law accommodating library problems and needs.
June 2012 – December 2016
Changes to Polish copyright law: main achievements
- For the first time, libraries may undertake digital preservation, including for unpublished works. This means that Polish cultural and literary heritage, especially for unique or rare works, is legally safeguarded for the future (Art. 28.1.2).
- Libraries may digitize works in their collections and make them available to users on library terminals, in accordance with the European Court of Justice ruling in the TU Darmstadt case (2015/04/germany-technische-universitat-darmstadt-wins-landmark-case-with-hogan-lovells-digital-use-of-copyright-protected-works-in-public-libraries/). Art. 28. 3 permits libraries to digitize their physical collections, irrespective of whether the publisher offers a digital version of the work or not. In return, the number of copies made available at electronic reading points must not exceed the number of physical copies held by the library.
- Libraries may digitize material, with certain conditions, for use in virtual learning environments (VLEs). This provision (Art. 27. 2) will assist the development of e-learning and distance education.
The new law makes major changes regarding the use of works where the library cannot currently request permission either because the rightsholder can’t be found (known as orphan works), or where the work is no longer commercially available.
- In accordance with the (ec.europa.eu/internal_market/copyright/orphan_works/index_en.htm) European orphan works directive (2012), libraries in Poland are now permitted to digitize orphan works and to make them available online (Arts. 355 – 359). Since the directive has cross-border effect, libraries in other EU member states may also use Polish orphan works, and libraries in Poland can use works deemed orphaned in other EU countries.
- The new law implements the (ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf) EU Memorandum of Understanding (MoU) on Key Principles on the Digitization and Making Available of Out-of-Commerce Works (Arts. 3510 - 3512). Poland is the third country after France and Germany to implement the MoU.
- The European Directive on Public Lending Right (PLR), that grants the author or owner the right to authorize or prohibit the public lending of a work, is introduced into Polish law for the first time. In line with the majority of European countries, PLR is applied to works in public libraries only (Arts. 28. 1 and 351 - 354). Payment to authors for the lending of their books is based on actual library loans. Payments for PLR are paid by central government in a specially ring-fenced budget funded by taxes on gambling (such as the national lottery, and betting on sports).
- The right to quote from whole works that are short, such as a poem, is now set out in the law. In addition, the purpose of the quotation includes scientific analysis, criticism, education, parody, pastiche, and caricature (Art. 29).
- To facilitate creativity on new media, such as amateur videos or a library promotional video posted on social networks, a new article (Art. 292) permits the use of a copyrighted work that is ‘incidental’, such as a painting appearing in the background of a video or photo.
- The paying public domain (or domaine public payant), a remuneration right for the use of works no longer protected by copyright, is removed from Polish law.
“The project was a unique opportunity for me to study the practical operation of copyrigt in today’s libraries. I discovered that many of the problems faced by libraries touch upon a fundamental part of copyright theory i.e. the balance between authors’ and public interests. But the most rewarding part of the project was that I could help design solutions to the problems, in an attempt to bring the theoretical debate to a more practical level.” - Dr. Krzysztof Siewicz, Project Legal Advisor
TIMELINE FOR THE REFORM PROCESS
- Bringing the perspective of public interest institutions, their goals and social mission to the discussions. Libraries participated in five stakeholder meetings organized by the Ministry of Culture & National Heritage (responsible for copyright law) and the Ministry of Administration & Digital Affairs on copyright law reform initiated by the Prime Minister’s office. The library intervention is recorded in the official protocol of the meetings.
- Developing a common library position for the first time. Three consultation meetings were held with the library community including the National Library and Łazarski University Library in Warsaw, Jagiellonian University Library and Economic University Library in Krakow, University Library Toruń, Banking School Library and University Library in Poznań, Economic University Library and Public Library in Wrocław and the Information Society Development Foundation.
- Raising public awareness. An article on library copyright issues was published in the high profile legal section of “Rzeczpospolita”, one of the largest circulation national newspapers in Poland, written by Project Manager, Barbara Szczepanska.
- Analysing library copyright provisions. A crucial output of the project was a legal analysis of provisions concerning libraries in Polish law (Act on Libraries and Act on Copyright), and the drafting of amendments to the copyright law to reflect the new reality for libraries and their users. The draft law was well received by the library community at large and endorsed by professional bodies including the Conference of Polish Academic Library Directors, the Conference of Public Library Directors, EBIB Association and the Polish Librarians Association.
- Promoting the library model law. Working with a professional media organization, videos were made to explain the library model law in a user-friendly way. (bibliosfera.net/BazaWiedzy/Barbara%20Szczepa%C5%84ska) View three videos online.
- Increasing library visibility among legal experts. The library model law was published in the renowned legal journal Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace z Prawa Własności Intelektualnej, stimulating discussion of library issues among legal academics.
- 27 April 2013. First meeting of the Copyright Forum: preliminary discussion on implementation of the EU Orphan Works Directive.
- 29 May 2013. The Ministry of Culture opened consultation on the scope of copyright exceptions and limitations. The library intervention is here. Opinion on C-117/13 is here.
- 6 June 2013. Second meeting of the Copyright Forum: implementation of the Orphan Works Directive and the MoU on out-of-commerce works. The library intervention is here.
- 2 October 2013. Third meeting of the Copyright Forum: scope of copyright exceptions and limitations, including libraries and implementation of the EU Public Lending Right Directive. The library intervention is here.
- 9 December 2013. Fourth meeting of the Copyright Forum: criminal liability for copyright infringement. The library intervention is here.
- 14 October 2014. Public consultation on the draft copyright law. The library intervention is here.
- 29 January 2014. Fifth meeting of the Copyright Forum. The library interventions are here and here.
- 19 November 2014. Sixth meeting of the Copyright Forum on licensing. The library intervention is here.
- 10 July 2015. The draft Copyright Bill is approved by the Lower House of Parliament (the Sejm).
- 7 August 2015. The draft Copyright Bill is approved by the Upper House of Parliament (the Senate) with 21 amendments. The amendments are mostly of a technical nature e.g. to clarify that PLR will not affect reading in libraries, that on-the-spot use is excluded, and that the payment scheme for authors is in line with public finance protocols.
- 11 August 2015. The Bill is returned to the Lower House Commission to recommend whether to approve the Bill or not.
- 11 September 2015. The Copyright Bill is adopted by the Lower House of Parliament.
- 17 September 2015. The final text is published on the website of the Polish Parliament (orka.sejm.gov.pl/opinie7.nsf/nazwa/3449_u/$file/3449_u.pdf).
- 1 October 2015. Public consultation announced of the regulations accompanying the Copyright Bill.
- 5 October 2015. The Copyright Bill is signed into law by the President of Poland.
- 19 October 2015. The Copyright Law is published in the Official Journal.
- 4 November 2015. Regulation on out-of-commerce works: template to apply for the use of out-of-commerce works published in the Official Journal.
- 6 November 2015. Regulation on orphan works: sources for diligent search published in the Official Journal.
- 9 November 2015. Regulation on out-of-commerce works: tender for collecting societies authorized to conclude contracts for use of out-of-commerce works published in the Official Journal.
- 20 November 2015. Entry into force of the Act of 11th September 2015 on amendments to the Copyright and Related Rights Act and The Law on Gambling.
- 20 November 2015. Regulation on Public Lending Right payments.
- March 2016. Opinion by Dr. Krzysztof Siewicz, Project Legal Lead on opt-out provisions in proposals by the Ministry of Culture to introduce Extended Collective Licences (Polish).
- 29 April 2016. Consolidated text of the Law on Copyright and Related Rights published by the Lower House of the Polish Parliament (Polish).
- 15 October 2016. The Poznań Foundation of Scientific Libraries (PFBN) and the Conference of Directors of University Libraries (KDBASP) respond to a public consultation by the Ministry of Culture and National Heritage that is preparing its position on European Commission proposals for modernization of EU copyright rules (pdf in Polish).
LIBRARY ANALYSIS and EDUCATIONAL materials
- 10 December 2015. Webinar: new Polish copyright law - key amendments for libraries with Barbara Szczepańska. Webinar attended by 75 librarians. (Polish)
- 14 January 2016. Analysis of the key amendments to the copyright law of 20 November 2015 for libraries, education, orphan and out-of-commerce works, and public lending right. Brochure prepared by Barbara Szczepańska (Polish).
- 14 January 2016. Infographic illustrating the main steps necessary to perform a diligent search for orphan works prepared by Barbara Szczepańska and Centrum Cyfrowe (Polish).
- 22 March 2016. Extended collective management and cultural institutions. Guest post by Barbara Szczepańska (Polish).
- 24 March 2016. Extended collective management of copyright - is digitization and sharing of cultural heritage on-line possible? By Barbara Szczepańska (Polish).
- August 2016. New copyright law of Poland. Analysis of library-related provisions. By Barbara Szczepańska (English). Download PDF.
The experience and technical knowledge gained since 2012, as well as working relationships developed with policy-makers and other stakeholders during the copyright reform process, will stand libraries well into the future.
“The library community was ready to take part in the national copyright debate in 2013-2014. Now we are in a strong position to continue engagement as the new law is implemented and new issues, such as Extended Collective Licensing, emerge on the copyright agenda.” - Barbara Szczepanska, Project Manager, Library and Information Services Manager at Hogan Lovells (Warsaw)