Tuesday 17 December 2013

Still on the Italian Communication Authority’s Regulation

A few days have passed since the Italian Communication Authority (AGCOM) issued its Regulation on Online Copyright Enforcement [breaking news by The 1709 Blog here and extremely helpful and detailed comment on the IPKat here]

Today, The 1709 Blog is delighted to publish a further analysis by its highly-reputed world expert on AGCOM matters, who so writes in incognito [is he/she a member of AGCOM? A Google employee? A lawyer from a law firm? Nobody really knows …]:

“Following the enactment of AGCOM Regulation, commentators are still debating what this new mechanism may entail for IP protection and freedom of the Internet. Meanwhile, there appears to be one thing that the Regulation will bring for sure, suggest some [naughty] practitioners: more business for the legal sector. So considered, law firms in Italy are getting ready for dealing with a possibly hugely increased amount of (administrative) litigation to which the Regulation may give rise from 31 March 2014 (this being the date when this is due to enter into force).

In this perspective, this blog's readers Portolano e Cavallo Studio Legale’s Regulation Toolkit may come as a helpful resource to navigate safely the sea of the AGCOM Regulation. The Toolkit is composed of two documents. The first one is a non-official English translation of the final version of the Regulation. Notably, its English appears to be much more stylish (and not less reliable) than the one used in the official English translation of the first draft, penned by the AGCOM itself and available here.

The second document is a graphic handbook where the pillars of the Regultion are delved with thanks to user-friendly red-coloured charts. To give 1709 Blog readers a preview, here are some pillars' pills on the procedure (regular track)…

… and on the “tragedy” that an ISP may face in case of non-compliance with AGCOM’s order:

Beyond the procedural diagrams, the Portolano's Toolkit is also worthwhile to learn some vocabulary. Thanks to its help, the foreign reader (and the Italian one alike) may become aware of brand-new categories that might populate the Italian copyright enforcement world from March onwards.

One of the most intriguing is "digital work", i.e. the particular subject-matter that the Regulation aims to protect. Pursuant to Article 1, (p), this is "a work, or parts thereof, with audio, audiovisual, photographic, videoludic, editorial and literary nature, including the applicative programs and the computer operating systems protected by Copyright Law and diffused on electronic communication networks". It is somehow innovative and super-broad definition that well-highlights the wide scope of application of the Regulation and of AGCOM’s potential influence in the Italian IP scenario in the next future. Another “alarming” one is "Webpage Manager" that, pursuant to Article 1, (h) is "who, within a website, manages a page where are present digital works or part thereof or hyperlinks […] to the same". Are 1709 Blog authors Webpage Managers? No one still knows, but in any event please
Average highly-trained team (of trainees)
specialised in handling AGCOM requests 
consider carefully that the red diagrams above are (likely to be) copyright-protected and that our Portolano friends own the relevant rights.

Interestingly, in the last slide of the Handbook the Portolano guys suggest that the potential targets of AGCOM orders (i.e., hosting and access providers) may have to “setup internal processes to manage AGCOM requests”. This might be handled by an “internal team trained and specialised in AGCOM requests and proceedings management”. Considering the fines that an ISP may be ordered to pay in case of non-compliance (from EUR 10,000 to over EUR 250,000), this might be a good idea. But is this at hand for newly established start-ups and ISPs with shoulders less broad than those of big multinational tech companies?"

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