On 26 September 2019, the Regional Administrative Court of Lazio (“TAR”) rejected the appeal lodged by the Italian Authors’ and Publishers’ Association (the “SIAE”) against the decision of the Italian Competition Authority (the “ICA”) taken on 25 September 2018. In this decision, the Authority had ascertained SIAE's abuse of dominant position in markets for to the management of copyrights. Copyright management markets were not covered by the Italian statutory provision under which the SIAE enjoyed a legal monopoly until 2017. These markets included: (i) copyright management services for the authors as well as services related to the protection against unauthorized uses of works; (ii) the issuing of licences to users (such as TV broadcasters, organisers of concerts); (iii) the management of copyright and related rights on behalf of foreign collective associations; and (iv) the granting of multi-territorial licences to certain types of users, such as Spotify or Google.
According to the ICA's decision, SIAE has implemented a complex exclusionary strategy to the detriment of its competitors aimed at extending and maintaining its (former) legal monopoly. In this way, it also limited the freedom of authors and publishers to choose the collecting entity with which to associate or from which to request services, including services which are merely 'ancillary' to copyright intermediation. Taking into account the specificity of SIAE's position, the complexity of the markets concerned and the novelty of the case, ACI imposed only a symbolic fine of €1,000.
The TAR rejected all of the grounds of appeal raised by the SIAE, finding the decision of the ICA was consistently written and motivated. The TAR stated, inter alia, that the antitrust rules founded in Article 102 TFEU, must always be applied except - according to the strict interpretation of the derogating rules - when such application prevents the care of the general interest as entrusted ex lege to an institution. In the case under examination, SIAE conducted an undue extension of its dominant position with the disputed conducts - deriving from the original "reserve" provided by art. 180 of the Italian Law on Copyright (Law no. 633 of 22 April 1941). This position was expanded to extraneous activities not provided for in the reserve and not otherwise covered by regulation. Finally, the TAR considered the amount of the fine imposed by the ICA to be appropriate, since the ICA correctly considered the uncertainty due to the regulatory changes.
For more information please find the Court’s decision in Italian here.
The official press release (in Italian) of the ICA decision can be found here.