This fall, the Council of Ministers' legislative and programmatic agenda included a draft amendment, the purpose of which is, among other things, to implement the Directive on Copyright in the Digital Single Market (hereinafter referred to as the "DSM Directive").* This directive introduces new principles and tools for copyright protection. According to published information, the government is scheduled to adopt the draft in the second quarter of 2022.

The DSM Directive was adopted by the European Parliament and the Council (EU) over two years ago – on 17 April 2019. This act introduced a number of modernising changes in the field of copyright and not only that, as the directive also contains regulations on other issues, such as the issue of fair remuneration of authors and performers.

Pursuant to Article 29 of the DSM Directive, Member States were required to implement EU legislation by 7 June 2021. Therefore, Member States were required to prepare appropriate changes to the regulations in force within their territories within two years. The Ministry of Culture and National Heritage, responsible for preparing the draft amendments to the implementation of the DSM Directive, is only now beginning work on the project. The delay is attributed to the late publication by the European Commission of guidelines on the proper implementation of Article 17 of the DSM Directive. These guidelines were included in the Communication from the European Commission to the European Parliament and the Council of 4 June 2021, COM(2021) 288 final*.

Therefore, we will have to wait until the second quarter of 2022 for the introduction of changes to copyright law in our domestic legislation. However, this does not change the fact that despite the delay in implementation, the currently applicable provisions, in the event of their ambiguity, should be interpreted in the light of the provisions of the DSM Directive.

According to the Government's assumptions, the regulations implementing the directive should correspond as closely as possible to the wording of the provisions of the implemented Directive, which consists of 86 recitals and 32 articles. Its provisions concern in particular:

• “extensions” of existing permitted use,
• measures to facilitate the conclusion of licensing agreements and enable wider access to exclusive rights,
• measures aimed at ensuring the proper functioning of the copyright market,
• fair remuneration for creators and performing artists***.

Finally, it's worth addressing the concept of the Digital Single Market (hereinafter referred to as the JRC). The JRC strategy was presented by the European Commission in May 2015. The goal of adopting this concept is to remove regulatory restrictions on digital matters to enable the development of a single digital market. Significant variations in regulations across European countries have impacted the digital market, and the strategy aims to create a borderless digital space****. These are the reasons behind the introduction of the DSM Directive on copyright.

Implementing the DSM Directive into national law is therefore crucial, on the one hand, from the perspective of the JRC's strategy, and on the other, these changes are simply necessary given the growth of online creativity. Therefore, we eagerly await the draft amendment.

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

*Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.05.2019, p. 92) (so-called "Digital Single Market" Directive)

**https://archiwum.bip.kprm.gov.pl/kpr/form/r3122564,Projekt-ustawy-o-zmianie-ustawy-o-prawie-autorskim-i-prawach-pokrewnych-oraz-nie.html

***Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, p. 21.

****Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021 p. 24

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