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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."
