Thursday 22 March 2012

No online copyright regulation to be adopted in Italy (for now)

Readers of this Blog who have both a passion for Italian affairs (no, those of former Prime Minister Silvio Berlusconi are not among them), and good command of Dante's language will have followed the eighteen-month saga concerning the proposal of the Italian Communication Authority (Autorità per le Garanzie nelle Comunicazioni - AGCOM) to adopt an administrative regulation to protect copyright over the internet.

Following its own assessment of issues relating to copyright protection over electronic communication networks, in December 2010 AGCOM published its draft regulation on copyright over electronic communication networks and launched a public consultation aimed at receiving comments from concerned parties.

The main criticism against AGCOM's proposal concerned the actual lack of competence of an administrative authority such as AGCOM to legislate in the area of copyright. Although Article 182-bis of the Italian Copyright Act (Legge No 633, 22 April 1941) provides that AGCOM and Italian collecting society SIAE (Società Italiana degli Autori ed Editori) are entitled to prevent and stop copyright infringements, it has been argued that AGCOM could have not possibly adopted a general copyright regulation. 
AGCOM President Corrado Calabrò
Article 6 of Legislative Decree No 44, 15 March 2010, by which Italy implemented Directive 2007/65 (the so called Audiovisual Media Services Directive) provides AGCOM with a regulatory competence in the field of copyright, but this is limited to audiovisual media services. 
The main purpose of the regulation would be to institute a simple, quick and proportionate procedure for granting protection against copyright violations. 
To this end, AGCOM proposed a complaint procedure composed of the following phases. 
First, complaints of alleged violations would be brought by copyright owners to  service providers, identifying infringing activities or information and requesting their removal. If the service provider did not proceed to remove such contents within 48 hours of the request, AGCOM would verify, by questioning only the content owner and the service provider, whether the contents were actually illicit and, if so, order the removal of the files from the server or the links to external websites.
This procedure, according to AGCOM, would have been akin (?) to the notice and takedown system envisaged by §512 of the US Digital Millennium Copyright Act (DMCA). Anyway, following a series of protests, the proposed regulation was amended and in July 2011 a new draft regulation was published. 
In contrast with the previous version, the new draft regulation provided for the procedure before AGCOM to be alternative to court proceedings. In particular, no procedure before AGCOM could have commenced (a) before the end of the actual "notice and takedown" procedure between the ISP and the right holder; and (b) if the right holder had decided to commence court proceedings.
The logo of one of the protests
organised against the
draft AGCOM regulation 

last summer
This new draft Regulation has been subject to criticisms, in relation to fundamental rights of the users, freedom of the ISPs to conduct their businesses, jurisdiction over Italian-directed foreign websites, etc. 
Yesterday, during a hearing before two commissions of the Italian Senate, AGCOM President Corrado Calabrò announced that it is unlikely that AGCOM will adopt any regulation on copyright over electronic communication networks in the immediate future. 
Calabrò made it clear that AGCOM would be competent to adopt such regulation - inter alia - in light of the provisions contained in Directive 2000/31 (the Ecommerce Directive), as implemented in Italy by Legislative Decree No 70, 9 April 2003. In addition, the proposed Regulation would be in line, said Calabrò, with recent CJEU case law (see 1709 Blog posts here and here), in that it would impose on ISPs neither a general obligation to monitor, nor the installation of filtering systems. 
This said, however, AGCOM President deemed it necessary for the Italian Parliament first to revise Italian copyright law (the current statute dates back to 1941). Moreover, he added "since copyright is borderless, the most appropriate venue for new copyright laws - at least as far as general guidelines are concerned - would be the EU, if not the UN" [did Calabrò mean WIPO, this blogger wonders].
"We are fed up with people who keep asking
whether we are boys or girls! Let's talk
about online copyright instead ..."
So it seems that nothing will happen, as current members of AGCOM will be replaced shortly. 
Right holders were pretty upset because of what happened yesterday at the Senate. In the words of Enzo Mazza, chairman of FIMI (Federazione Industria Musicale Italiana), "More than two years have been dedicated to hearings, draft regulations and debates over the gender of angels and now they say they lack competence to this end? It's ridicolous!"
Perhaps all this story is just good to revert to Samuel Beckett and say that here too "The sun shone, having no alternative, on the nothing new".

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