On December 12th 2013, the Italian Communication Regulatory Authority (AGCOM) issued the “Regulation on copyright protection on electronic communications networks” (the “Regulation”), as a result of a previous public consultation, completing a long-lasting law making process started in 2010. The Regulation appears to be shaped under the E-Commerce Directive, implementing the provisions thereof .
A very recent report of the entertainment industry in Italy reveals that 48% of the music content used in Italy is based on online piracy. The Regulation is aimed at providing an efficient tool to be used by right holders against a copyright or neighboring right infringement taking place on an electronic communications network. This tool is now in place and available effective as from April 2014, as an alternative remedy and a faster one to a judicial action.
Thanks to the contributions from stakeholders and to the remarks of the European Commission, the current text reflects a more balanced approach to piracy and has raised the interest of some foreign authorities, including the French Regulatory Authority, which pioneered this issue, having France enacted some years ago yet the “Hadopi Law”.
AGCOM recalls the need to foster the culture of the legal use of digital contents, extending legal offer thereof on a large scale, by promoting the services that enable digital contents lawful fruition. But the core of the Regulation is the administrative procedure which any right holder can start in case of copyright infringement taking place on electronic networks.
The first significant point is the target of the Regulation itself: instead of involving end-users in the proceeding, meaning users in streaming or downloading mode of digital contents illegally uploaded, the Authority targets those subject who nurture web piracy through the illegal diffusion of protected contents.
In this fashion, AGCOM wants to keep distance from unpopular and arguable remedies (such as cutting-off the internet connection), which could bring about some political and legal issues, considering that any such measure should be first provided by the law.
Likewise, the Regulation has not addressed the preliminary management of the case made by the right holder before the start of the procedure. Hence the right holder is free to send a cease and desist letter to the copyright infringer or straight to the Internet Server Provider, under the circumstances, and any prior “notice and take down” activity would not fall under the scope of the Regulation.
The procedure starts with the petition of right holder requesting AGCOM to remove the digital content. The Authority can dismiss it, if it considers the petition to be lacking of grounds or inadmissible, prima facie; otherwise, AGCOM opens the proceeding and formally informs the Internet Service Provider (ISP), the website manager and the uploader, if traceable, within seven days from the date of the petition.
The ISP, website manager and uploader may spontaneously remove the content, thus putting an end to the proceeding; should it not be the case, they have the right to rebut within five days from the Authority communication. Upon expiration of this deadline, a collegial body will be in charge of the dismissal of the case or of the adoption of measures.
The other peculiar feature of the Regulation concerns the enforcement. The relevant measures are directly addressed to the Internet Service Provider and they vary on the basis of the server location.
It is worth noticing the Regulation was adopted just after the publication of the conclusions of Advocate General Pedro Cruz Villalon (case C-314/12: UPC Telekabel / Constantin Film e Wega Filmproduktions). In this circumstance, in light of the opinion expressed by the European Commission and by Italy, the Netherlands, United Kingdom and Ireland, in accordance with Dir. 2001/29, Advocate General established that a specific blocking measure imposed on a specific website is not disproportionate, in principle, only because it entails significant costs and it can also be easily circumvented without any specific technical knowledge. National courts are entitled to combine the fundamental rights of the parties involved, by considering the particular case and all relevant circumstances, in order to create a fair balance between those fundamental rights.
According to the opinion of the Advocate General an ISP can be ordered to block its clients’ access to a website, which is liable of a copyright infringement. This has to be construed a fall back solution, whenever any other measures, such as the request of removal addressed to the website manager, have not proved successful.
Such position is reflected in the Regulation for the case of foreign websites. Indeed, the Regulation provides that when the server is located in the Italian territory, the collegial body will order, to the hosting provider, the selective removal of contents; in the case of a mass violation, instead of the removal, AGCOM can order the disabling of the access to the webpage. But if the server is located abroad, the collegial body will order to the mere conduit providers based in the Italian Territory to disable the access of Italian users to the webpage or to the website.
In any case, no order is addressed to the website manager: trading off the various interests involved in the digital economy, the AGCOM has put the burden of enforcement on the ISP, to secure effectiveness to its measures.
Finally AGCOM may also order the service provider to automatically redirect the requests of access to the infringing web sites to a web page created pursuant its instructions in order to inform the public of the proceeding.
The measures are adopted within 35 days as of receipt of the right holder petition. The Regulation provides also for an abridged procedure whenever a shorter timeframe is requested due to specific circumstances: for instance, in view of the economic value of the infringed rights and the seriousness of the damage caused or when the illegal offer of the digital content is made with the view of gaining profits. This fast track proceeding is also possible whenever AGCOM had assessed yet an infringement of copyrights and other associated rights by the same subject.
A similar proceeding to the above applies for the protection of copyrights on media services.
An appeal before the administrative court can be lodged against these measures.
In conclusion the Regulation introduces an alternative procedure, faster and cost effective, compared to judicial remedies, which shall anyway be necessary to obtain the compensation of damages. Hence, as of today, the right holder can choose, in the case of infringement of copyrights and neighboring rights, between these options:
- sending a cease and desist letter to the Internet Server Provider or the website manager; this action would trigger ISP liability anyhow, according to E-Commerce Directive;
- start a proceeding before AGCOM asking the removal of the content or the disabling of the access to the webpage, according to the Regulation;
- start judicial proceedings, also seeking injunctive relief, to obtain the removal or the disabling of the access to the webpage, when, due its complexity, the matter involves a more thorough assessment ;
Despite it being the result of a progressive fine tuning and definition process involving various stakeholders, the Regulation has raised harsh criticism in the circles of digital services industry. So keeping in mind that, in principle, the validity thereof could be still challenged, the Regulation is due come into force on March 31st 2014.