With resolution no. 680/13/CONS of 12 December 2013, the Italian Communications Authority (ICA) unanimously adopted the final text of its Regulation concerning copyright protection on electronic communication networks” (hereafter the Regulation), aimed at opposing the spread of copyright infringement both on the web and within audiovisual media services under Legislative Decree no. 177/2005. The text largely follows the Draft Regulation adopted with resolution no. 452/13/CONS, which was submitted for public consultation last July (and which has already been documented here and here on this blog). However, following comments left by the stakeholders, and the debate with the European Commission, the ICA amended the original version and delayed the entry into force of the new provisions until 31 March 2014.
As regards the amendments in detail, pursuant to article 5, the ICA always acts at the request of the copyright holder (hereafter the Holder) who shall file complaints directly to the ICA, with no need to send any prior take down requests to the website manager, as established in the earlier version (article 6(1)). Afterwards, should the ICA decide to start the procedure, it shall inform not only the mere conduit and hostingproviders, but also, when traceable, the uploader (“any natural or legal person uploading digital works on electronic communication networks and making them available to the public through proper links or torrents or other forms of connection”)and the website manager (“who manages a space on the Internet where digital works or parts of them or hyperlinks (links or torrents) are shown, or uploaded by third parties”) of the possibility of voluntarily complying with the Holder’s take town request (which closes the issue) and of presenting counter-arguments (article 7).
If the infringing contents are not removed voluntarily, the procedure shall continue and the relevant documents shall be transmitted to the ICA Commission for services and products (hereafter the Commission). If an infringement is ascertained, the Commission may issue one of the following orders according to the circumstances laid out in article 8: i) if the website showing the illicit contents is hosted on a server located in Italy, as a rule, the Commission orders hosting providers to “selectively remove” the contents, i.e. to delete from the website the infringing contents or the connection to them thorough links or torrents. Should the infringements be more substantial, the Commission may also order the “disabling of access” to the contents in question; ii) if the website showing the illicit contents is hosted on a server outside Italy, the Commission may order providers carrying out simple transportation activity (mere conduit) to disable access to the website. In addition, when access is disabled, the Commission orders providers to automatically redirect users to a different web page.
As regards timing, the updated Regulation speeds up the procedure as the Commission shall now adopt take down measures within 35 days (instead of 45) of receipt of the complaint filed by the Holder. The final text also maintains the shortened procedure for particularly serious and widespread infringements, which, however, gives providers more time to comply with the ICA orders compared to the earlier version: the Commission has 12 days (instead of ten) to decide and the provider has two days (instead of one) to comply with the order (article 9). Moreover, unlike in the earlier text, only working days shall be counted (article 16).
Finally, The definitive text specifies that the definition of “digital work” protected by the Regulation also includes “application programs and computer operating systems” which were not expressly included in the earlier draft.
Generally speaking, the Regulation seeks to oppose massive piracy and does not target final users who download the contents or watch them via streaming or peer-to-peer applications and programs (article 2(3)). The Regulation also maintains its original structure which comprises a first section concerning measures for promoting the development and protection of digital works and a second section related to online copyright infringement and infringement on audiovisual media services procedures. This version also confirms that the procedure described above is an alternative to court proceedings: in fact, should the latter be pending for the same object and between the same parties, the procedure involving the ICA shall not be commenced (article 6(3). As such, should the Holder bring court proceedings while a procedure involving the ICA is already pending, the latter shall be immediately closed (article 7(7)).