On 31 March 2014 a new regulation of the Italian Communication Authority (“AGCOM”) on the protection of copyright on electronic communications networks will come into force. The new regulation will introduce a specific procedure for requesting the removal of copyright infringing contents on the Internet and on audiovisual media services.
Approved on 13 December 2013 by Decision no. 680/13/CONS after a public consultation, the regulation will have a significant impact on the activities of web-operators (such as, for example, companies managing websites, web TV and video-on-demand platforms). Since now such web-operators have managed breach notifications just through their own procedures for notice and takedown, while as from 31 March 2014 they will need to comply with the new mandatory procedure.
The regulation governs two different proceedings: the first one aims at protecting copyright on the Internet, and the second one aims at protecting copyright on audiovisual media services (e.g. broadcasting, live streaming, webcasting and video-on-demand).
The proceedings relating to the Internet can be briefly summarized as follows:
• unless there are pending judicial proceedings, any person who owns, or has a licence for, copyright or a related right on a digital work, collecting societies (such as the SIAE) and trade associations may inform AGCOM of a copyright breach in a website;
• within 7 working days from the receipt of the notice, the AGCOM, if the case is not dismissed, will start administrative proceedings, communicating it to the relevant “mere conduit service providers” (i.e. providers of access to the Internet), “hosting service providers” (i.e. service providers storing content of third parties), “uploader” (i.e. the person or legal entity that actually uploaded the work on the Internet, including through links), and to the “manager of the website” or the “manager of the webpage” (i.e. the company or individual that, on the relevant website or webpage, is responsible for the management of an area on which digital works or links to them are published, also if uploaded by a third party);
• the persons receiving the AGCOM communication may choose to voluntarily remove the allegedly infringing content (in which case the proceedings will be dismissed) or keep such content and, within 5 business days, file a statement with its own defensive arguments with AGCOM;
• in the event that the infringing content has not been removed spontaneously, AGCOM, within 35 working days from receipt of the initial notice, will either dismiss the case (if the notice of infringement turns to be groundless) or take one of the following measures:
– if the website with the infringing content is hosted on a server located in Italy, AGCOM may order the hosting service provider to remove the illegally published content; in case of massive violations, AGCOM may order the relevant service provider to completely disable access to the infringing contents and to redirect website visitors to a webpage made in compliance with the directions of AGCOM, which informs the visitors about the copyright infringement;
– if the website with the infringing content is hosted on a server located outside Italy, AGCOM may order the mere conduit service provider to prevent the access to the entire website and redirect website visitors to a webpage made in compliance with the directions of AGCOM, which informs the visitors about the copyright infringement;
• AGCOM may shorten the above timeframes in cases of serious breach of copyright or massive violations, or may decide to extend these terms in case of special needs of investigation;
• in the event of non-compliance with its orders, AGCOM will issue administrative fines ranging from € 10,000 to € 250,000 and inform the judiciary police.
The proceedings linked to the protection of copyright in the audiovisual media services are similar to those described above, and may be concluded with: (i) a formal order of AGCOM to the linear audiovisual media services providers not to broadcast programs in violation of copyright law, or (ii) a formal order of AGCOM to the service providers of on-demand media to remove within 3 working days the infringing content from their catalogues. Furthermore, in the case of serious violations, AGCOM may issue an initial notice to the relevant service providers, and then adopt any other necessary measure to prevent the further spread of infringing contents.
It is important to underline that the regulation does not affect in any way the end-users who enjoy streaming or downloading of works in breach of copyright law, or who share the same with file sharing programs. Moreover, from the business side, suppliers of caching services, including search engines, are outside the sphere of application of the regulation.
The adoption of the regulation has given rise to criticism and a broad public debate in Italy, in particular concerning whether or not AGCOM was empowered to issue rules on this matter, the inadequacy of definitions and timeframes set out in the regulation, and the potential practical difficulties in enforcing the new procedures.
Few days ago the National Association of Online Press (Anso), the Federation of Independent Digital Media (Femi) and Open Media Coalition filed a complaint with the Lazio Regional Administrative Court against the new AGCOM regulation.