Standpoints submitted in public consultations on the proposal for amendment of the Act on Copyright and Related Rights have been made public, reaching as many as 66 in number!

The Ministry of Culture and National Heritage has published long-awaited opinions of institutions with a stake in the formulation of this law.

The New Technologies Law Association (SPNT) has also presented its standpoint. Attorney-at-law Agnieszka Wachowska, working with Mikolaj Sowinski, are coordinating the work of the IT working group.

While the amendment is mainly concerned with implementation of the DSM directive and SATCAB II, the amendment is interesting due to the proposed rewording of art. 77 of the Copyright Law, which makes certain provisions non-applicable to software. The list of the provisions non-applicable to software has been expanded to include art. 68 of the Copyright Law, which deals with license agreement validity periods and notice periods.

Six institutions commented on the changes regarding non-applicability of art. 68 of the Copyright Law to software:

  • half of these institutions criticized the proposal;
  • the Jagiellonian University, the Association for the Protection of Industrial Property, and the New Technologies Law Association (SPNT) stated that long-term licenses are needed for computer software, and that this is controversial among scholars due to art. 68 of the Copyright Law.
  • the latter two institutions proposed during the consultations that art. 68(1) of the Copyright Law should continue to apply, but that art. 68(2) of the Copyright Law (under which an agreement concluded for more than five years is considered an agreement concluded for an indefinite period) should not apply.

The Ministry of Culture and National Heritage published a report on the public consultations in addition to the submitted standpoints. One statement made in the report is that the wording making art. 68 non-applicable to software was included in error (the error concerns art. 68(1) and this will be rectified in a new version).

It is a good thing that the Ministry of Culture and National Heritage noted the standpoint of the New Technologies Law Association.

My personal view is that even at the moment, a long-term (permanent) software license may be granted which is non-terminable under the law as it stands today, while I realize that not all lawyers agree, and there is a need on the market for agreements of this kind. Thus equally, if this was stated by lawmakers definitively, one result would be greater certainty of legal solutions and a lower instance of contractual monstrosities with a non-termination requirement.

Link to New Technologies Law Association standpoint.

Originally published 23 Nov 2022.

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