Implementation of CDSM Directive into national law

More than 2.5 years after the implementation deadline, Poland still had to implement the provisions of the Copyright in the Digital Single Market (CDSM) Directive into the Polish law. The Ministry of Culture and National Heritage launched on 15 February a 2-week public consultation around the implementation of CDSM Directive. AmCham presented its position paper raising several key points:

– Proposal for the removal of Article 5a of the Act on Collective Management of Copyright and Related Rights from the Draft;

– Concerns regarding the exception for text and data mining;

– Comments regarding additional remuneration;

– Remarks regarding the informational obligation.

One of the main concerns is cutting generative AI from the scope of the exception. Article 4 of CDSM Directive creates an exception regarding the exploration of texts and data. This allows the use of copyrighted works for the purpose of text and data mining, but it is limited – the exception does not apply when the use of works has been explicitly reserved by copyright holders in an appropriate manner, for example, through machine-readable means for publicly available content on the Internet. The Polish draft introduces this exception, however, the additionally adds a reservation that the exception does not apply in the case of “creating generative models of artificial intelligence”. As a result, the exception regarding text and data mining cannot be used for training generative AI models, which in turn means that creators would need permission/license to train models in the EU. The proposal also completely deviates from the approach adopted by the EU, the intention of the Directive to harmonize copyright laws throughout the EU and with the AI Act itself.