Italian Communication Authority announces draft online copyright regulation by end of summer

Italian copyright fans will remember that previous commissioners of AGCOM (Autorità per le Garanzie nelle Comunicazioni - Italian Communication Authority) struggled with the adoption of an administrative regulation to protect copyright over the internet for quite a long time, but no such regulation was adopted before the end of their office last year (here, here, here).

One of the main problems encountered by AGCOM was its apparent lack of competence to legislate in the area of copyright. Former AGCOM president and erotic poet Corrado Calabrò indeed asked the Government (and Parliament) to clarify this point and, more in general, the nature and extension of AGCOM powers in the area of copyright.

Nothing of this sort has happened yet.

New AGCOM president Angelo Cardani

New AGCOM members were elected last June, following a reform of the structure of the Authority itself which resulted - among other things - in the number of commissioners being reduced from 8 to 4. Despite budgetary cuts, the idea of an online copyright regulation appears still vivid in both the minds and hearts of new AGCOM members.

Last December, new commissioner Maurizio Decina spoke about various copyright issues. Besides his opinion that ISPs should not be required to pay royalties for displaying links to and snippets of contents, Decina declared that, while Italian Government should clarify the nature and extension of AGCOM competencies in the field of copyright, he announced that - even this should not happen - the Authority would go ahead and adopt a specific regulation anyway.

Average (and slightly stressed)
Italian copyright lawyer
can't wait to see the draft regulation

After the end of an endless and cold winter (at least for Italian standards), yesterday AGCOM president Angelo Cardani announced that by this summer the Authority will issue a draft regulation on online copyright protection, which will then be subject to public consultation. This will happen even without a legislative intepretation of the actual competencies of the Autority in the area of copyright. As explained by Cardani, 

"when dealing with technical aspects and fundamental rights, perhaps it would be better for the Parliament to be in charge, but previous Parliament did not want to address these issues (or rather, it was busy otherwise), and we do not know what current Parliament intends to do. Therefore technicians [these being AGCOM members] will do their job. We will safeguard pluralism and right of access, and we will not have any doubts or hesitations [to go ahead and adopt an online copyright regulation]".

Will this really happen? Still according to Cardani, so far the new Authority has always kept its promises, and this will be the case also for the online copyright regulation.

We have then to wait a few more months to see the draft regulation unveiled. In the meanwhile, it is worth recalling that debate about copyright enforcement is currently taking place a bit everywhere. US Register of Copyrights Maria Pallante recently announced the need for the US to update its copyright system, including enforcement provisions (here and here). Likewise, following an orientation debate, at the end of last year EU Commission agreed a way forward for modernising copyright in the digital economy and, among other things, announced the need to discuss how to improve the legitimacy of enforcement in the context of wider copyright reform.

Italian copyright debates and updates

Carrying Italian
children's favourite gifts:
copyright-related news

Just a few days before Christmas, as the festive mood was heating up in Italy, a couple of copyright-related news made the headlines (well, sort of). Both pertain to topics also covered by The 1709 Blog in the past few months.

AGCOM’s online copyright regulation

1709 Blog readers will remember that the Italian Communication Authority (AGCOM) has been trying to adopt an administrative regulation to protect copyright over the internet for the last couple of years or so (see earlier posts here, here and here).

However, no such regulation was adopted before the office of former AGCOM commissioners and president ended last June.

One of the problems encountered by the members of the Authority was AGCOM's apparent lack of competence to legislate in the area of copyright. In a speech delivered before the Italian Senate, former AGCOM president (and poet) Corrado Calabrò observed that some of this Authority's competences touch upon fundamental rights, including the freedom to conduct a business, social dignity, children's rights, media pluralism, and freedom of expression and information. This said, the nature and extension of AGCOM powers in the field of copyright were not utterly clear. As a result, AGCOM decided not to go ahead with its online copyright regulation, lacking an interpretative provision to this end. The Italian Government should have adopted this, said Calabrò.

The summer passed, and so did autumn. Thankfully (?), there are things that never change.

Indeed, as reported by ICT magazine Key4Biz, one of the new members of the Authority, Maurizio Decina, has recently spoken about the next moves of AGCOM in relation to copyright. 

Incidentally, Decina declared that he is against the idea of asking ISPs to pay for displaying links to and snippets of contents [elsewhere in Europe this idea does not seem to be very fashionable at the moment: see here, here, and here].

This said, the commissioner referred to the Regulation saga and agreed that the Italian Government has to clarify the nature and extension of AGCOM competencies in this field. However, even should this not happen, the Authority will go ahead, sometime in the near future [when?]. Extended piracy impoverishes legal offers of contents and, to contrast it, Italy needs to embrace swift and effective enforcement, which is still lacking according to Decina. 

There will be a race to administer rights
also in these songs from now on

A free market for neighbouring rights

Back in January this year, Prof Mario Monti's government passed a reform (known as "Decreto Liberalizzazioni"), which was meant to boost Italian suffering economy, in particular by promoting the value of competition (see 1709 Blog post here). Pursuant to Article 39(2) of the Decreto,

"To favour the creation of new undertakings aimed at protecting the rights of artists, performers and executors, by enhancing competitive pluralism and allowing for a more economic-oriented management, as well as by favouring the actual involvement and control by rights owners, administration and intermediation activities relating to neighbouring rights, as per the Italian Copyright Act, shall be free, no matter how these are carried out."

Now, almost a year later and shortly before Monti resigned as Italian Prime Minister, the provision concerning neighbouring rights management has been given a definitive legal shape. This means that new IMAIE will no longer be the only player active in the remunerative market for administering neighbouring rights.

Game over: no online copyright regulation in Italy

As readers of this Blog will remember, the Italian Communication Authority (AGCOM) has tried for a couple of years to adopt an administrative regulation to protect copyright over the internet. 

Since last March, AGCOM has sent out contradictory signals as to whether it would have actually gone ahead and adopted the regulation before its current members (who have held their office for seven years) are replaced in a few days' time (see earlier posts here and here).

Lately, one of the main criticisms raised against AGCOM's draft regulation has focused on its actual lack of competence to legislate in the area of copyright. At the end of March there have been rumours that Mario Monti's government would adopt a proviso (to be probably included in a law decree) aimed at clarifying (or, according to some commentators, allowing) AGCOM's competence to this end (see earlier 1709 Blog’s post here).

This morning, AGCOM President Corrado Calabrò delivered what is likely to be his last speech in this capacity before the Italian Senate.

Here, Calabrò summarised AGCOM's action and role over the past seven years and, among the other things, highlighted that, while in 2005 the largest corporation by market capitalisation was Esso, now this position has been taken over by Apple, which has bigger market capitalisation than Milan Stock Exchange.

Calabrò observed that some of AGCOM's competences touch upon fundamental rights, such as freedom to conduct a business, social dignity, rights of children, pluralism, and freedom of expression and information.

It is up to primary legislation, said Calabrò, to set up a general framework in these areas. However, fine tuning (as Calabrò called it) and technical provisions are better provided by an administrative regulatory body such as AGCOM.

As far as copyright is concerned, AGCOM has had the great merit of starting a discussion as to the protection of copyright over the internet, in a country which has a seventy-year old copyright statute [is this to be considered as an achievement? If so, then Italy is a few years - to say the least - behind the rest of Europe].

Although AGCOM has showed its ability to reconcile the various rights and interests involved in copyright, it will not go ahead with its copyright regulation. This is because Italian Government has not yet adopted the proviso needed to clarify the nature and extension of AGCOM's competence to this end. Therefore, until this happens, AGCOM will not feel obliged to adopt its "well-balanced" regulation.


So this is the final result of two years of debate. If this was a film, it would probably be a Commedia all'italiana. According to the Wikipedia entry,

"rather than a specific genre, the term indicates a period in which the Italian film industry was producing mainly brilliant commedies, with some common traits like satire of manners and a prevailing middle-class setting, often characterized by a substantial background of sadness that would dilute the comic contents."

More news on the online copyright regulation in Italy

Falkor was such a cutie, but
this is not what the post is about

Readers of this Blog who were kids in the 1980s, have a passion for fantasy films or are fans of Michael Ende's books will certainly remember The Never Ending Story. More than the plot of this book/film or mesmerising characters such as Falkor the luck dragon, it is its title (also recalled by La Repubblica) which is appropriate to describe the new developments in the Italian online copyright regulation saga (earlier posts here and here). 

Yesterday Italian newspaper La Stampa published what it claimed to be a draft memo/decree (this is not clear yet) prepared by Monti's government to make it clear (according to some commentators, it would be better to say 'allow') that the Italian Communication Authority (AGCOM) may go ahead with its draft online copyright regulation and publish it before its members are replaced next May.

In theory, such a memo/decree, which carries the title Disposizioni interpretative in materia di competenze dell'Autorità per le garanzie nelle comunicazioni' ("Interpretative provisions as to the competences of AGCOM") would be aimed at merely clarifying that the Italian Communication Authority has the competence to adopt its proposed regulation.

As it is unknown who drafted this memo/decree and gave it to La Stampa, this information lacks any official character and the contents may well be changed. However, the draft memo/decree includes a set of provisions which are fairly interesting to read, in that they set out guidelines as to the contents of the regulation.

In brief, these are the main points in the alleged Government's draft memo/decree:

(1) AGCOM is to be meant as the competent 'administrative authority' pursuant to Articles 14 to 17 of Legislative Decree No 70, 9 April 2003, by which Italy transposed into national law Articles 12 to 15 of the E-Commerce Directive [this, according to some commentators, would reduce the competences of two other administrative authorities, these being the Competition and Data Protection Authorities];

(2) AGCOM shall be competent to settle any controversies concerning the application of the Italian Copyright Act (Law No 633, 22 April 1941) over the internet [this point does need clarification, as it would be very difficult to sustain the legitimacy of a proviso which forbids the parties to a controversy from commencing court proceedings at any stage during this procedure];

(3) Within 30 days from the entry into force of the Government's (memo/)decree, AGCOM shall adopt a regulation which includes notice and takedown procedures relating to any contents made available in Italy by providers located anywhere in the world, and which are contrary to the Italian Copyright Act [this raises a few private international law issues, also because the law is far from settled in relation to infringements carried out over the internet];

(4) In case of non-compliance with AGCOM's orders (including cease-and-desist), fines pursuant to Article 1(30-31) of Law No 249, 31 July 1997, shall be issued [fines due to non-compliance with AGCOM's requests for documents, data and information, range between EUR 516,46 and EUR 103.291,38; fines due to non-compliance with AGCOM's orders (including cease-and-desist) range between EUR 10.329,14 and EUR 258.228,45]; 

(5) In case of serious infringements or reiteration of illicit activities, in addition to the fines just mentioned, AGCOM shall terminate access to the service [perhaps to be intended as internet access tout court, in pure Hadopi-style?] or, only if possible [does this mean that impeding 'access to the service' comes first?], to the contents made available and which infringe the Italian Copyright Act;

(6) AGCOM shall promote initiatives aimed at encouraging the adoption of codes of conduct to regulate the relationship between copyright owners and service providers, in order to encourage the legal supply of contents over electronic communication networks;

(7) Article 1(5-6) of Law No 128, 21 May 2004 shall be no longer in force [Article 1(5) provides for service providers, following a court order, to communicate to the police any information which may serve to locate websites and those responsible for such illicit activities; Article 1(6) provides for service providers, following a court order, to either impede access to infringing contents or remove such contents].

It is certainly an excellent thing that the future of copyright is discussed widely in Italy, also among the general public. However, as often happens, over-simplifications and/or exaggerations should be avoided, in that the issues on the table are heterogeneous and call for special attention. 
The Never Ending Story was about the charming world of Fantasia, which was threatened by a force called The Nothing, a void of darkness which consumed everything. By reading some comments in the general press, one may get the impression that also Italy is threatened by The Nothing, also known as copyright enforcement over the internet.

Online copyright regulation to be adopted in Italy (definitely maybe)

Corrado Calabrò 

A few days ago this Blog reported on the uncertain fate of the online copyright regulation the Italian Communication Authority (AGCOM) has been trying to adopt over the last year and a half.

Last week's hearing of AGCOM President Corrado Calabrò before two commissions of the Italian Senate has left many copyright owners pretty disappointed, in that it seemed that the AGCOM would not adopt any regulation in the immediate future.

Now the scenario appears to have changed. AGCOM may be keen to issue its online copyright regulation before its members are replaced next May. 

In a letter sent to Italian newspaper Corriere della Sera last Saturday, as well as during another hearing at the Senate this morning, Calabrò made it clear that AGCOM has not given up the idea of going ahead with its regulation. 

Antonio Catricalà

However, the Communication Authority is said to be waiting for Mario Monti's Government to say whether AGCOM is actually competent to adopt a general copyright regulation. A member of the Government and former President of the Italian Competition Authority Antonio Catricalà is apparently working on this. What is needed is an interpretation of AGCOM's powers to this end, as resulting from: 

(1) Article 6 of Legislative Decree No 44, 15 March 2010 (by which Italy implemented Directive 2007/65/EC -- the so called Audiovisual Media Services Directive); 

(2) Article 182-bis of the Italian Copyright Act (Law No 633, 22 April 1941); and 

(3) Legislative Decree No 70, 9 April 2003 (by which Italy implemented Directive 2000/31/EC -- the so called Ecommerce Directive).

So now the idea would be to adopt the regulation after Easter break, as reported by Milano Finanza. 

A copyright regulation to be adopted, Definitely Maybe? This blogger suggests that, rather than the title of the first album by Oasis, it would be better to revert to something more recent in time:

'Cause you're hot then you're cold

You're yes then you're no

You're in then you're out

You're up then you're down 

... To be continued ...