On April 17, 2019, the European Parliament and the Council (EU) adopted Directive 2019/790 on copyright and related rights in the Digital Single Market (hereinafter referred to as the Directive). This act introduced a number of modernizing changes to copyright law in the Digital Single Market. Pursuant to Article 29 of the Directive, Member States had until June 7, 2021, to implement EU law. However, no draft amendments implementing the Directive have been proposed in Poland to date. Therefore, we will still have to wait for the introduction of changes to copyright law in our domestic legislation. However, this does not change the fact that, despite a possible delay in implementation, the currently applicable provisions, if ambiguous, should be interpreted in light of the Directive's provisions. Today's post will focus on Article 15 of the Directive, which concerns the protection of publishers.

Due to the development of the internet, traditional press has lost its importance, and readers are more likely to reach for smartphones or laptops than newspapers. The internet has become the primary means of finding information on current affairs, the current situation in the country and around the world, and gaining knowledge from all areas of life. Due to the operation of online platforms where service providers publicly share excerpts from press publications, traditional press publishers have been deprived of a significant portion of their advertising revenue.* As part of its Digital Single Market strategy, the European Commission has therefore deemed it appropriate to introduce provisions that would allow press publishers to enter into licensing agreements with service providers who use their press publications. This resulted in Article 15 of the Directive, which regulates the protection of press publications regarding online uses, and is supplemented by recitals 54 to 59.

Article 15 of the Directive introduces a new related right – it establishes an exclusive right for publishers, prohibiting them from reproducing or publicly making their publications available online without appropriate authorization. This protection applies to so-called information society service providers. Obliged entities will include search engines such as Google, as well as online platform operators such as Instagram, YouTube, and social networking sites*.

The cited provision provides for important inclusions, the above-mentioned right/legal protection does not apply to:

1. private and non-commercial uses of press publications by individual users (Article 15, paragraph 1),
2. linking activities (Article 15, paragraph 1),
3. single words or very short excerpts from a press publication (Article 15, paragraph 1),
4. ordinary facts reported in press publications (recital 57).

Due to the significant shift of press publications from print newspapers to the internet, the position of press publishers has become threatened. The benefits of press publications disproportionately accrued not to the creators or publishers of press publications, but to the providers of these services – primarily news aggregators or large online platforms – which advertisers were more likely to use. Therefore, the introduction of the aforementioned provision was necessary to protect publishers' interests. Furthermore, the regulations described are crucial for the existence of a free press market. From the perspective of individual users, the introduced change should impact the credibility of information posted online.

* Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, p. 137
** Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, pp. 138-139
*** M. Stieper, The Longest Life in the Digital World – The Longest Life in the Digital World, ZUM 2020/3, p. 168

This alert is for informational purposes only and does not constitute legal advice.

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