Poland in no rush to keelhaul its pirates, even after Dutch download ban

After a ruling from the EU Court of Justice signalled countries shouldn't take a tolerate attitude to copyright infringement, Poland is in no hurry to tackle illegal downloading.
Written by Michiel van Blommestein, Contributor

Even if it's just a matter of time before Poland's citizens are officially banned from downloading copyright-infringing material, nobody seems to be in a hurry to make it happen.

Last month's ruling by the EU Court of Justice that the Netherlands had to end its practice of permitting citizens to download pirate material without any legal penalty will, in time, also come to impact the Polish system, a legal expert told ZDNet.

Before the EU court verdict, the Dutch legal system allowed users to download copyrighted material for their own use. That meant that it was legal to access films, music, and ebooks from wherever they liked — be it a legal or pirate source — without having to fear prosecution.

However, sharing these materials was banned, so in order to keep on the right side of the law, users would have to turn off the share feature on their BitTorrent clients.

To compensate copyright-holders for pirate versions of their work being made, a special levy was put in place. When a consumer buys a device or storage media that could theoretically be used to store pirate copies — blank CDs and USB keys, but also hard drives and DVD recorders — they also pay the levy on top. The money raised is then distributed among rights-holders.

While the 'piracy tax' isn't universally adopted in Europe, the Netherlands isn't the only country that has adopted such a practice.

According to Rafal Kasprzyk, a lawyer specialising in copyright and civil law, Polish law follows the same principles. Just like in the Netherlands, "there is no law explicitly stating downloading for private use is banned or allowed, whatever the source", Kasprzyk says. "However, there are legal opinions concluding that downloading in Poland for private use is legal, no matter what the source is."

And, just like in the Netherlands, a special tax on media and devices is collected by a copyright agency — despite the recent EU ruling which found against the practice.

Now that the European court has spoken on the Dutch case, however, the question remains how long Poland's accepting attitude towards downloading will continue. In the period since the verdict, the legal situation in Poland hasn't changed.

According to Kasprzyk though, Poland will probably have to alter how it interprets the relevant legislation. "The verdict sets a new precedent and it is a source of jurisprudence," he says. "Polish law itself will not need to be altered as there are no explicit rules on the legality of downloading. But interpretations will have to be revised."

So the main question is: when will this happen? Dutch citizens were banned from downloading pirated content immediately after the verdict, but Poland has remained quiet on the issue. What's more, the 'piracy tax' on devices and blank storage is remains in place.

And there's no hurry to change that, Kasprzyk reckons. "So far, nobody is planning to start hunting individual users, even in the case torrents, which are illegal because they are also sharing the content," he says. There have been efforts to close down platforms that facilitate piracy, such as Chomikuj, he says. "But that is proving to be very hard as their servers are located all over the world."

Nonetheless, the Polish government could declare downloading illegal based on the EU court verdict, just as the Dutch did, with courts then starting to interpret new cases in light of the EU court's guidelines set last month.

However, Kasprzyk does not see that happening in the near future. The move would be so unpopular, he believes politicians won't dare to touch the issue. "Maybe after fresh elections [they will], but for at least a year or two, the current system will probably stay in place," he said.

He also highlights the particularly vocal protests against ACTA in 2012 that made the Polish government shelve its support for the agreement. "Millions of people are using these services, mostly young people without much to spend. If the government started an anti-piracy campaign, they would go for the large platforms instead, but even that would be met with disapproval. My take is that it would take a new government fresh out of elections for that to happen."

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