May AGCOM Regulation become redundant?

Dr Giuseppe Mazziotti
(pictured in Florence)

A few weeks ago the Italian Communication Authority (AGCOM) issued its Regulation on online copyright enforcement [on which see here, here and here; unofficial English translation is available here]. 

The Regulation has not yet entered into force, but has attracted considerable attention already. 

Today The 1709 Blog is delighted to host a thorough and sharp analysis by Dr Giuseppe Mazziotti, Associate Fellow at the Centre for European Policy Studies (CEPS), Brussels and founder of Mediartis, Rome.

Here's what Giuseppe writes:

"Understanding why AGCOM recently adopted an administrative regulation on online copyright enforcement – in spite of the issues and perplexities raised by the European Commission in its letter on 3 December 2013 [see here] -  would be hard (or even impossible) without briefly considering the background to this initiative and today’s Italian political scenario. 

As the readers of this blog know, the regulation creates a new notice-and-takedown (NTD) procedure that will be handled by AGCOM itself and will have ISPs as the main targets of website blockings, measures aims at disabling access to entire websites in case of massive copyright infringements and, in case of non-compliance, heavy administrative fines. As a result of the entry into force of the regulation (on 31 March 2014) copyright holders will be placed in a position to ask AGCOM to order mere conduit and hosting providers to restrict access to infringing materials by Internet users. 

The AGCOM regulation does not contemplate any provisions with regard to infringements carried out by individuals on peer-to-peer networks; nor does it embody measures aimed at restricting the activities of caching or linking providers.

The main purpose of the new regulation is that of making copyright enforcement fast (or, as it was said, “super-fast”) and more effective in a country where a smooth functioning of the notice-and-takedown procedures foreseen under the e-Commerce Directive has been hindered by its erroneous (and unsuitable) transposition into Italian law. 

According to the Italian legislative decree that implemented the e-Commerce Directive, requests of takedown of illegal content should be notified to ISPs by means of “communications” by competent judicial or administrative authorities in order to acquire a legally binding force. In other words, in Italy the obligation for ISPs to act “…. expeditiously to remove or to disable access to the information…” does not arise at the time when an ISP obtains knowledge or becomes aware of illegal activities or infringing content occurring on its servers (cf Article 14 of the e-Commerce directive). Rather, such obligation arises (only) when a notice is communicated to an online intermediary by a judicial or administrative authority. 

This does not mean that the largest providers of hosting services operating in Italy have followed such approach: Google, Facebook, Twitter and many others have spontaneously adopted informal notice-and-takedown procedures. 

Still, the way Italy transposed the liability exemption rules embodied in the e-Commerce Directive reflects the idea that public authorities should be involved in the context of online enforcement procedures from the outset. This is the same idea that the new regulation is based upon, considering that

(i)      the administrative procedure has to start by a review of the admissibility of the infringement claim and a notification made by AGCOM to "the suitably-identified service provider", to the "uploader" and to the webpage and website manager and

(ii)     the copyright holder's request is transmitted to AGCOM’s judging panel – acting as a possible substitute (or duplicate) of a proper judicial authority - after the formal notification procedure.

So, what is new in the regulation? What might make its enforcement suitable?

Time constraints: the only thing?

The answer is: The creation of time constraints for the whole procedure (and even more so for the faster procedure envisaged by the regulation) and the sanctioning power that AGCOM granted to itself (!) with regard to fines are certainly elements of novelty, whose effectiveness will have to be tested as soon as the regulation becomes applicable. 

One might legitimately wonder whether a relatively small authority like AGCOM will have the human and technical resources to handle large amounts of claims and proceedings and putting them to an end in a timely manner. 

The reason why the enforcement of the regulation might be useful from a policy-making perspective is that the gravity of website blockings and online restrictions that AGCOM might end up ordering to ISPs could trigger a suitable political debate and persuade the Italian Parliament – ie the next one, not the current one, where there is no clear political majority – to eventually enact a reform of civil enforcement proceedings, in line with both the e-Commerce Directive and the Intellectual Property Rights Enforcement Directive, known as ‘IPRED’.  

If Italy will make enforcement of digital copyright smoother through the implementation of balanced notice-and-takedown procedures and access to IP-specialised courts easy and effective for all categories of copyright holders - including individual right-holders and small and medium-size content producers - there will be no reason to keep a substitute such as AGCOM regulation in force for long."