New Liability Rules For Online Content-Sharing Service Providers

• Published date: 31 August 2022
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Author: Ms Aleksandra Krześniak-Sałajczyk (Sołtysiński Kawecki Szlęzak)

Implementation of the provisions of the Directive on Copyright in the Digital Single Market¹("DSM Directive") into national legal orders is mandatory for all EU member states. One of the main and most widely commented changes in the Polish legislation are new rules on the liability of online content-sharing service providers (i.e. in practice: owners and administrators of online platforms), for infringement of third-party copyrights by users of those platforms. The regulations apply to platforms that allow their users to publish content online.

What are the current liability rules for platform providers? (notice and take down)

The existing regulations²- in principle - excluded the liability of hosting service providers, as long as the provider did not know that the data it stored and provided was of an unlawful nature, and upon becoming aware of this, prevented access to the data. In other words: the basic prerequisite for excluding the provider's liability was (i) lack of knowledge of the unlawful nature of the content submitted by the user, and (ii) adequate response to notice of the unlawful nature of the content, that is, basically blocking it and preventing access to it. The so-called notice-and-take-down procedure did not require the provider to take additional preventive measures on its own initiative. In practice, the above rules turned out to be insufficient, and the protection of copyright owners (or other authorized entities) was difficult. For example - a file that infringed copyright could be removed from a given service and then reappear on the site within a short period of time, but in a technically different location (i.e. under a different link).

What will change? First: the consent of the rightholders

The proposed amendments introduce additional obligations that a platform provider must meet in order to indemnify itself from liability for storing and making publicly available content that violates copyright. As a general rule, a provider may distribute works uploaded by its users if the rightholder gives itsconsent. The regulations do not specify how the consent should be given. The rightholder's consent also covers distribution activities by platform users that are not made for profit or do not generate significant revenue. In other words: users of the platform will obtain "automatic" authorization to post and distribute within the platform, works licensed by the provider, as long as they meet the aforementioned conditions (i.e.: acting...