Poland: New copyright law provisions: a step towards simplifying contracts in the digital world

Other countries are observing these actions closely and analysing whether they should take similar steps. Poland has also moved in this direction. At the "Poland. A Year of Change" event in February this year, Polish Prime Minister Donald Tusk announced the need to provide greater state support for businesses and to collaborate with entrepreneurs to initiate an active process of deregulation. The government aims for Poland to become a European leader in this field and to inspire other EU countries to take similar actions. Recent data provided by the Prime Minister's Office shows that, as of today, 197 proposals for legal changes have already been analysed, 123 of which been accepted for further discussion. On 6 May, the government adopted the first package of changes, which includes eight deregulatory projects, some of which relate to tax regulations (VAT and CIT).

Proposed changes to Polish copyright law

The general scope of the legal changes will also cover provisions of the Copyright Act. At the end of April, the draft bill amending certain laws to simplify administrative procedures and support entrepreneurship appeared on the website of the Government Legislation Centre. This legal act introduces a revolutionary change in the very first provision. This is significant from the perspective of contracts for the transfer of economic copyright and exclusive licensing agreements as defined in the Copyright Act. Specifically, the manner in which these contracts are concluded is set to change.

The Polish government plans to align the aforementioned provisions with the realities of the digital economy. Currently, failing to maintain a written form for certain contracts – even when concluded electronically – results in their invalidity. This is particularly relevant when parties use popular online tools to conclude contracts, as these do not permit contracts to be signed with a qualified electronic signature as required by law. The proposed change aims to simplify formal requirements, increase the security of legal transactions, and adapt the regulations to the commonly used, less restrictive documentary form. This is especially important for small businesses, freelancers and start-ups, who are often unaware of the legal nuances and are exposed to significant risks. In the worst cases, they may incur unnecessarily high costs when resolving issues or legal disputes.

What is the current situation?

Under the current legal framework, a contract for the transfer of economic copyright – as well as an exclusive licensing agreement – requires a written form under the penalty of invalidity.

By preserving the written form, Polish law stipulates that these contracts can be concluded by signing a physical version of the contract with a handwritten signature, known as the "standard written form", or by making a declaration of will in electronic form and signing the electronic version of the contract with a qualified electronic signature in accordance with the eIDAS regulation.

Furthermore, Polish law stipulates that failing to comply with the proper form of the contract will result in absolute invalidity, meaning the contract will not produce legal effects, such as the transfer of copyright or granting an exclusive licence. However, declaring the contract invalid leads to other unintended consequences, such as the obligation to return remuneration or liability for infringing economic copyright.

What changes are being proposed?

The current requirement to maintain a written form for the effective transfer of economic copyright and granting an exclusive licence is increasingly inadequate in light of the growing significance of digitalisation. Therefore, it is proposed to lower the formal requirements for concluding such contracts by allowing them to be made in documentary form.

This means that a person making a declaration of will in documentary form will have full freedom to choose the method of communicating their will, such as oral communication, e-mail, SMS or electronic means, provided the declaration is recorded in a relevant form. This solution allows for greater flexibility, responding to the needs of modern legal transactions, where traditional requirements for paper documents are becoming less relevant. It is important to note that the document can take various forms, including electronic, audio or cloud-based, as long as there is a possibility to recreate the declaration. Thus, a phone conversation can fulfil the documentary form requirement if it is properly recorded – for example, as an audio recording. The document does not need to contain a handwritten or electronic signature. Smart contracts and blockchain can also meet the documentary form requirement.

When making a declaration of will in documentary form, it is also necessary to be able to identify the person who made the declaration. Although the legislator does not specify identification methods, this can be done using traditional means such as a phone number, IP address, e-mail address or data from online accounts. The development of biometric technologies, such as iris or voice analysis, paves the way for more advanced identity verification; however, these methods are still rarely used in legal transactions.

Practical implications of the proposed changes

Given that the current version of the Copyright Act – requiring IP transfer agreements and exclusive licences to be concluded in written form – has remained unchanged since its introduction in 1994, the planned amendments can be seen as groundbreaking. As written form is still required under penalty of nullity, the contract needs to be signed by hand or with a qualified signature. After the change, a document form, such as e-mail, scan, PDF file, audio or video recording, will suffice – if the parties and the content of the declaration can be identified.

This could significantly facilitate the transfer of rights, especially in remote and international relations. Another potential consequence of the shift could be increased access to the IP market, reduced transaction costs, and greater flexibility for start-ups and technology companies. However, great changes also come with great risks. The documentary form is less rigid than the written form, which can lead to disputes about whether the rights were effectively transferred, especially when communication was fragmentary (e.g. via e-mail). As a result, the importance of precise documentation of correspondence, archiving e-mails and agreements, as well as the role of legal counsel in negotiating and dealing with IP contracts will increase. Existing IP transfer or exclusive licence templates will need to be revised. Another potential outcome of the planned, subtle yet significant amendment is a growing interest in digital document circulation and authentication tools, such as e-signature and timestamping.

Nowadays, a significant number of disputes arise due to the uncertainties regarding types of electronic signatures. This is especially true in the IT sector, where agreements are frequently governed by foreign law, yet certain elements – such as overriding mandatory rules – must still comply with Polish law, which may conflict with the typically less stringent foreign regulations. As a result, there may be a need for clear rules of interpretation in the future. Practice will show which document forms the court will consider sufficient. Companies will most likely have to rely on clarifying guidelines or rulings, such as on whether SMS messages can transfer copyrights.

As these changes are currently only at the proposal stage, they may be subject to further amendments and possibly some clarifications in the future.

authors: Daria Rutecka, Piotr Podsiedlik