Towards a new Italian Regulation on Online Copyright Enforcement

//Marco Bellezza, Associate at Portolano Cavallo Law Firm and AnOx 2013 participant, analyzes Italy’s newly released draft regulation on online copyright.

Thursday, July 25th, the Italian Communication Authority (“AGCOM”) issued a new draft regulation entitled “Draft regulation on copyright on the electronic communication networks and implementing measures pursuant to Legislative Decree of April 9, 2003 no. 70” (Annex A to the AGCOM decision no. 452/13/CONS of July 25, 2013) which, among other measures provides for new administrative procedures before the AGCOM for the notice and takedown of online content which infringe copyright.

The AGCOM launched a 60-day public consultation to collect stakeholder comments on each article of the regulation and to allow stakeholders to propose specific amendments to the Regulation itself.  Afterwards AGCOM will evaluate the comments received and it will decide whether or not to embrace them in the context of the final regulation.  According to Article no. 19 of the Regulation the entry into force of the final regulation is expected on February 3, 2014.

It is worth nothing that the Regulation constitutes the outcome of several initiatives taken in recent years by AGCOM on this matter.  Indeed beginning in 2010 AGCOM proposed two different draft regulations and launched public consultations which persuaded the former AGCOM’s Council in April 2012 to withdraw its proposals absent a specific law which grants AGCOM a regulatory power on online copyright enforcement.

Despite this remaining unsolved issue, in the spring of 2013 the new AGCOM’s Council decided to reopen the copyright dossier and the Regulation constitutes the first important step of the work done by AGCOM in the recent months.  Regulation that, as we will see below, would have a deep impact on the activities performed by the ISPs in Italy and which very likely will refuel the debate on this crucial matter for the internet ecosystem.

The Regulation’s Structure and Scope

The Regulation is divided into 5 chapters as follows:

  • Chapter I – General Principles (articles 1-2);
  • Chapter II – Measures to Foster the Development and the Protection of the Digital Works (articles 3-4);
  • Chapter III – Procedures for the Protection of Online Copyright pursuant to the Legislative Decree of April 9, 2003 no. 70 (articles 5-10);
  • Chapter IV – Provisions on the Protection of Copyright on the Media Services (articles 11-15);
  • Chapter V – Final Provisions (articles 16-19).

The main aims of the Regulation are twofold: 1) to foster the development of the legal offer of digital works and the literacy on the lawful use of such works on the internet; and 2) to protect the online copyright by means of the Procedures able to ascertain and to stop the copyright infringements carried out on electronic communication networks. Pursuant to Article no. 2.3 of the Regulation, the activities carried out by the uploaders (intended as natural persons or the legal entities which upload digital works on electronic communication networks making them available to the public also by means of links) as well as the activities performed by internet users through peer-to-peer networks are expressly out of its scope.

Procedures before AGCOM for Online Copyright Infringements and Sanctions

The most interesting and controversial chapter of the Regulation is the one related to the administrative notice & takedown procedures available to right holders before AGCOM.  The Regulation provides for an ordinary procedure as set forth by articles no. 5-9 and for an abbreviated one where the terms are halved and that can be activated in case of severe copyright infringements.

The Procedures can be activated by the right holder (intended as the owner or the licensee of a digital work or an association representing such subjects) when its copyright is infringed by a website owner (intended as the information society service provider which manages and organizes a web space where are uploaded, even by third parties, digital works or parts of them also by means of links or trackers) in order to obtain the selective removal of the infringing content or the takedown of the entire website.

The AGCOM cannot start the Procedures on its own initiative; a notice by the right holder is necessary and the Procedures are alternative but not substitutive to the proceedings before ordinary Courts.  Indeed, if between the same parties and on the same matter there is a pending proceeding before the competent Court, the Procedures cannot be initiated or prosecuted before the AGCOM.

Before starting the Procedures the right holder must send a notice to the website owner requiring the removal of the infringing content. If the website owner has implemented self-regulatory notice & takedown procedures, which have been previously communicated to the AGCOM, the right owner cannot start the Procedures before 7 days after sending the notice. Alternatively, the right holder can apply for the Procedures within 2 days or without previous notice in the case when it is impossible to contact the website owner. To apply for the Procedures the right holder shall use a specific form provided by AGCOM that contains information on the alleged infringement and the subjects involved.

The AGCOM Direction for media services evaluates the admissibility and if the notice complies with the requirements of the Regulation, the director starts the Procedures. Under the ordinary procedure the Direction sends a communication to the involved parties (i.e. the right holder, the uploader, the website owner and the ISPs involved) and informs the uploader, the website owner as well as the ISPs that should they remove the relevant content on a voluntary basis within 3 days from the receipt of the communication the case will be dismissed.

If the involved subjects intend to challenge the notice they can apply for a counter-notice explaining their defensive arguments within 3 days starting from the receipt of the communication by AGCOM. Afterwards the Direction evaluates the case and it proposes to the AGCOM board for services and products alternatively the dismissal of the case and/or the issuance of the relevant order.

The competent AGCOM board can issue the following orders on the basis of the seriousness of the infringement to the website owner as well as to the ISPs involved:

1 ) selective removal order: ordering the removal of infringing content from the relevant webpage and/or of the links or trackers related to infringing contents;

2) shutdown of the website: ordering disabling access to the website. In this case the AGCOM board could ask the ISPs to redirect the website to a webpage which contains the AGCOM’s order.

In case of non-compliance with its orders, AGCOM can issue a fine ranging from EUR 10,000 to EUR 250,000 to the website owner as well as the ISPs involved.

The procedure must be concluded within 45 days starting from the receipt of the right holder notice.  The AGCOM’s orders as well as the fines can be challenged before the Administrative Court of Lazio – Rome (Tribunale Amministrativo Regionale del Lazio) within 60 days starting from their issuance.

Preliminary remarks on the Regulation and Next Steps

From a preliminary analysis of the Regulation, despite what was declared by AGCOM’s members in the last months, the Regulation appears unbalanced in favor of the enforcement measures. The measures aimed at fostering the legal offer of digital works to fight online piracy are weak and likely will be ineffective.

Aside from considering AGCOM’s competence on the matter of online copyright enforcement in the prevailing Italian legislative framework – an issue that will surely be faced in the context of the public consultation – it should be noted that the proposed Regulation seems unable to adequately guarantee the rights and interests of the subjects involved in the Procedures.

In particular, in connection with the ISPs – which may be completely extraneous to the infringements carried out by their users on the relevant platforms – the 3-days term provided to file a counter-notice seems excessively strict especially in connection with claims that might be very complex.

Furthermore the Regulation introduced a form of liability for linking that, in recent time, was excluded by the relevant Italian case-law.  Similar concerns related to the orders that AGCOM might issue to ISPs and the website owner to the extent that the Regulation does not precisely specify when AGCOM might opt for the shutdown of the entire website (an order that can adversely affect the exercise of the fundamental freedom of business of the provider as recognized by the EU Charter of Fundamental Rights).

Given the above and other issues that arise from the proposed Regulation it is crucial that all stakeholders, from industry to academia, join the public consultation that will be an occasion to amend the Regulation with the aim to reach the fair balance between all the interests and rights of the parties involved.

//Marco Bellezza

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