Publication date: January 09, 2026
On 20 September 2024, an amendment to the Act of February 4, 1994 on Copyright and Related Rights entered into force. The purpose of the amendment was to implement two directives of the European Parliament and of the Council (EU) of April 17, 2019, into the Polish legal system: 1) Directive 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions by broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (the so-called SATCAB II Directive) and Directive 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (the so-called Digital Single Market Directive, or DSM). The deadline for implementing both directives expired long ago, in June 2021. This delay was in particular the result of waiting for the European Commission’s guidelines on the application of Article 17 of the DSM Directive, as well as the controversy related primarily to this provision and the emerging allegations against the directive that it reduces the scope of freedom of speech on the Internet.
According to recital 3 of Directive 2019/760 (DSM), the rules were designed to keep pace with rapidly changing digital technology. The rapid development of digital technologies is transforming the way works and other subject-matter are created, produced, distributed and exploited. New business models and new actors are constantly emerging. Appropriate legislative provisions should be future-proof so as not to constrain technological developments. The objectives and principles of the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject-matter in the digital environment. This Directive establishes rules on the adaptation of certain exceptions and limitations to copyright and related rights to the digital and cross-border environment, as well as measures to facilitate certain licensing practices relating, in particular, but not exclusively, to the dissemination of out-of-commerce works and subject-matter and the online availability of audiovisual works on video-on-demand platforms, in order to ensure wider access to It also contains rules facilitating the use of content in the public domain. To ensure the proper and fair functioning of the copyright market, it is also necessary to introduce rules on rights in publications and the use of works or other protected subject matter by online service providers storing and providing access to content uploaded by users, rules on the transparency of contracts with authors and performers, remuneration of authors and performers, as well as a mechanism for the revocation of rights that authors and performers have transferred on an exclusive basis.
The explanatory memorandum to the draft act specifies that the implementation of the DSM includes the following changes to copyright law:
1) the introduction of new forms of permitted use (exploitation of texts and data) and the modification of some existing ones (use of works in teaching activities, reproduction of works for the preservation of cultural heritage, Articles 3-7 of the Directive);
2) Modification of the rules for the use of commercially out-of-commerce works (Articles 8-11 of the Directive);
3) Introduction of collective licensing with extended effect (Article 12 of the Directive);
4) Introduction of measures to facilitate the licensing of works made available through video-on-demand services (Article 13 of the Directive);
5) Introduction of a new related right for press publishers (Articles 15-16 of the Directive);
6) Introduction of specific provisions for online content sharing service providers (Article 17 of the Directive);
7) Ensuring fair remuneration for authors and performers (granting authors and performers an unwaivable right to remuneration for the online exploitation of audiovisual, musical and musical-lyrical works, introducing a transparency obligation and modifying the mechanism for adapting contracts in contractual relations between rightholders and users, introducing changes to the right of authors and performers to terminate or withdraw from concluded contracts (Articles 18-22 of the Directive);
8) Introduction of new forms of permitted use of databases sui generis, i.e. covered by the Act of 27 July 2001 on the protection of databases (Article 3, Article 4 and Article 6 of the Directive)
Reproduction of distributed works for the purpose of text and data mining
As part of the amendment to copyright law, a new type of fair use was introduced concerning the reproduction of disseminated works for the purposes of text and data mining. According to the regulations, text and data mining shall be the analysis solely using automated techniques designed to analyse text and data in digital form in order to generate specific information, in particular patterns, trends and correlations. According to recital 8 of the Directive, text and data mining (TDM) is the automated mathematical analysis of information in digital form, such as patterns, sounds, images and data. Text and data mining may also be carried out on facts or data themselves that are not protected by copyright. There has been defined text and data mining as an activity, not a mining tool (technique).
The Polish Copyright and Related Rights Act regulates the reproduction of disseminated works for the purposes of text and data mining under Article 26, subparagraph 2, and Article 26, subparagraph 3. The first provision applies to beneficiaries such as universities, research organizations, and cultural heritage institutions. This refers to uses whose purpose is focused on scientific research and without the achievement of direct or indirect profit. The DSM Directive indicates that the definition of a research organization should be interpreted broadly. Only commercial use and control over a research organization by a commercial entity will be grounds for exclusion.
According to the justification of the Act, the material scope of permitted use in the form of text and data mining for scientific research purposes is indicated in Article 3 of the DSM Directive, which provides for an exception to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC on the legal protection of databases, in Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the so-called Infosoc Directive ) and in Article 15(1) of the DSM Directive. Therefore, reproduction of works and subject matter of related rights, extraction of databases protected by the rights of the database producer and their storage for the purpose of text and data mining for scientific research purposes are permitted.
Interestingly, text and data mining under Article 3 of the DSM Directive is possible regardless of the rightholder’s will. Due to the nature and scope of the exception, which is limited to entities carrying out scientific research, any possible harm to rightholders resulting from the application of this exception should be minimal. Therefore, Member States should not provide for compensation to rightholders in respect of uses under the exceptions for text and data mining introduced under the Directive.
Text and data mining for purposes other than research (Article 26 with index 3)
In addition to permitted use in connection with scientific activities, the possibility of using data and texts in the form of mining for commercial purposes is also provided. Reproduction of disseminated works for the purposes of text and data mining is permitted, unless the rightholder has provided otherwise. In the case of works made publicly available in such a way that anyone can access them at a place and time of their choosing, the reservation shall be made in a machine-readable format within the meaning of Article 2 point 7 of the Act of 11 August 2021 on open data and the re-use of public sector information together with metadata. Works reproduced in such manner may be stored solely for the purposes of text and data mining, for as long as necessary to achieve that purpose.
The material scope of permitted use in the form of text and data mining for commercial purposes is indicated in Article 4(1) of the DSM Directive, which provides for an exception to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, in Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, in Article 4(1)(a) and (b) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, and in Article 15(1) of the DSM Directive. This means that this scope is identical to the catalogue specified in Article 3 of the DSM Directive, although it additionally also covers computer programs.
Unlike under Article 26, subscript 2, there are no purpose limitations in this case. Under Article 4(2) of the Directive, reproductions and extractions made under the permitted use may be retained for as long as necessary for the purposes of text and data mining. Therefore, there is no requirement for such use to be defined as, for example, research. However, Article 4(3) introduces another, ultimately significant limitation: The exception or limitation provided for in paragraph 1 shall apply provided that the use of the works and other subject-matter referred to in that paragraph has not been expressly reserved by rightholders in an appropriate manner, for example by machine-readable means in the case of content that has been made publicly available online.
Recital 18 of the DSM Directive clarifies this point in an unambiguous manner: such an exception or limitation should only apply where a beneficiary person has lawful access to the work or other subject-matter, including where the work or other subject-matter has been made publicly available on the internet , and unless rightholders have appropriately reserved the rights of reproduction and extraction for the purposes of text and data mining. For content that has been made publicly available online, it should only be appropriate to reserve those rights by machine-readable means, including metadata and the terms of use of the website or service. The reservation of rights for the purposes of text and data mining should not cover other uses. In other cases, it may be appropriate to reserve rights by other means, such as contracts or unilateral declarations. Rightholders should be able to apply measures that ensure respect for the reservations they have made in this respect. Such an exception or limitation should be without prejudice to the mandatory exception for text and data mining for scientific research purposes provided for in this Directive and the existing exception for temporary acts of reproduction provided for in Article 5(1). 1 of Directive 2001/29/EC.
Therefore, the possibility of using permitted use for commercial purposes is conditional not on the purpose, but on the consent of the rightholder, although it should be noted here that the lack of consent should be expressed in an appropriate form, allowing for machine reading within the meaning of Art. 2 point 7 of the Act of August 11, 2021, on open data and the re-use of public sector information. This provision states that a machine-readable format is a file format structured in such a way that computer programs can identify, recognize, and extract specific data and their internal structure. Therefore, it is not sufficient to include in the regulations provisions such as: “text and data mining is not permitted” or “text and data mining is prohibited.” It is necessary to include such information in a machine-readable format, e.g., in the page’s metadata (html ), in a file with a .txt extension, or in file metadata (e.g., JSON, RDFa). For example, with respect to a website, the following disclaimer in machine-readable format (html) might be included in the <head> section: meta name = ”tdm-reservation” content = ”true”, which serves to reserve the right to data mining, although there are, of course, other, more complex methods. Such a disclaimer does not technically block mining, but its inclusion in a specific format means that anyone mining the data despite the disclaimer is infringing copyright, exceeding fair use, which may lead to civil liability for infringement of copyright (Article 79 contains a list of claims in this regard).
According to the justification of the Act, the differences between fair use in the scope of text and data mining in Article 26 with index 2 and Article 26 with index 3 of the Copyright Act are as follows:
1) Article 26 with index 3 does not contain any subjective restrictions – anyone can use the discussed form of fair use;
2) the scope of works that can be mined on the basis of Article 26 with index 3 also includes computer programs (Article 77 paragraph 1 of the Copyright Act excludes the admissibility of mining texts and data contained in computer programs only in relation to fair research use); 3) under Article 26 with index 3, works can be used for any purpose, under Article 26 with index 2 – only for the purposes of scientific research;
4) in accordance with Article 26 with index 3 paragraph 3, reproduced works can be stored only for the purpose of text and data mining and for as long as it is necessary to achieve this purpose, while Article 26, sub-paragraph 2, does not introduce any such time limitations;
5) the possibility of using fair use under Article 26, sub-paragraph 2 does not depend on the will of the rightholder, whereas under Article 26, sub-paragraph 3, the rightholder may prohibit the use of his work by means of an appropriate disclaimer.