With a one-year delay, the Italian government has implemented the EU Directive 2014/26/EU “on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market”, the so-called Barnier Directive.
On 11 April 2017, the Legislative Decree no. 35/2017, which implemented the Directive, entered into force.
This way, the 'freedom of right holders to choose their collective management organizations', as well as the principle of 'equal treatment of categories of right holders and equitable distribution of royalties' has finally been recognised in the Italian legal framework.
However, this new Italian provisions have probably not gone as far as many had hoped.
Indeed, many observers perceived the Barnier Directive as the end of the exclusivity granted to the Società Italiana Autori ed Editori - SIAE - the Italian Collecting Society. On the contrary, SIAE seems to carve out enough space in the newly established legal framework to continue to operate within its exclusivity borders.
The Legislative Decrees defines a 'collective management organization' as a subject which, as its sole or main purpose, manages the rights of the authors and the related rights on behalf of more than one rightholder, to the benefit of them, and which fulfils one or both the following requirements: it is owned or controlled by its members, and does not aim to make a profit. However, it is explicitly ‘without prejudice to’ Article 180 of the Italian Copyright Act.
Furthermore, the new piece of legislation transposes the principles of the 'freedom of choice', i.e. the right of the rightholders to authorise a collective management organisation of their choice to manage their rights, for the territories of their choice, irrespective of the Member State of nationality, residence or establishment of either the collective management organisation or the rightholder but, again, ‘without prejudice to' Article 180 of the Italian Copyright Act.
Article 180 grants SIAE the exclusive right to act as an intermediary in any manner “whether by direct or indirect intervention, mediation, agency or representation, or by assignment of the exercise of the rights of performance, recitation, broadcasting, satellite broadcasting and mechanical and cinematographic reproduction of protected works”.
SIAE has benefited from such exclusive right, granted by law, exercising a de facto monopoly in the field of collective management of rights (with the exception of the related rights).
By “saving” Article 180, the Legislative Decree appears therefore to have maintained SIAE’s exclusivity. However, at this stage it is difficult to assess what the real impact of the Legislative Decree will be on the role and nature of collecting societies in Italy. It is also difficult to predict what role foreign and “other” collecting societies might play, what different format SIAE might take (if any). This is all likely to play out in the upcoming months as the consequences of the changes in the law filter through to possible changes in practice.
Only these future developments and, perhaps, further implementing domestic legislation will provide answers to these questions.