The European Commission is soon to deliver an opinion about a proposal of Italian regulator AGCOM regarding the enforcement of copyright rules in the Internet. The proposed measures were notified to Brussels in September and the standstill period is due to expire on December 3, 2013. However, the content and the tenor of the Commission’s opinion will be decisive for the success of the proposed reform. Fact is, a similar legislative initiative aborted in 2011 following a very negative opinion of the Commission’s offices.
If the initiative of AGCOM goes through, it will create an important precedent in Europe, since the enforcement of copyright in the Internet is normally carried out by courts, not by administrations.
ISPs, consumers, libertarians and experts have vigourosly contested AGCOM’s proposal because it could affect freedom of speech as well as business rights. In particular, they challenge the modality whereby the Italian regulator would supervise and tackle copyright infringements in the Internet by way of orders of removal and blocking. By contrast, rightshodlers associations as well as the Italian Collecting Society SIAE have supported the initiative.
Remarkably, the matter has overcome the natural boundaries of a stakeholders debate and has become a subject for discussion at very high institutional levels. Various members of the Italian Parliament (including the president of the Chamber Laura Boldrini) have questioned the competence of AGCOM in regulating this matter and observed that only the legislator, not the regulator, should fix limits and guarantees of civil freedoms. The Foreign Affairs Minister Emma Bonino has also criticized the regulator’s initiative. Lastly, a mediatic bomb came from Frank La Rue, UN special rapporteur for protection and promotion of freedom of opinion and expression. The UN officers, during a series of meeting in Italy in mid-November, declared in a report the following:
“The issue of intellectual property in the context of freedom of expression has been raised in more than one meetiing in the course of my visit. All regulations governing constitutional rights, especially if they relate to freedom of expression, should be approved by the Parliament. As an independent authority, the NRA has the sole responsibility to apply the provisions in force provided by the law. It is only for this reason that the NRA has the power to adopt their own administrative regulations.
One reason for concern is the role of AGCOM in the definition of sanctions in intellectual property, because this is a prerogative of the Parliament. Even if the NRA can apply by virtue of law certain restrictions to online content, the removal of an online content should however be established by the court in each case”
In the following meeting with journalist, Mr. La Rue expressly stated that the reform envisaged by AGCOM may be against the Italian Constitutional Chart.
The proposal of AGCOM has been notified to the European Commission in compliance with Directive 98/34.
Here a summary of the controversial AGCOM draft decision:
The draft regulation numbers 19 Articles, divided into five Chapters, and two Annexes.
Chapter I gives the definitions used (art. 1) and the regulation’s purpose and scope of application (art. 2). It is specified that the new rules will not apply to downloaders and peer-to-peer programmes.
Chapter II lists the measures (art. 3) taken by the Authority to encourage the development, promotion and awareness of digital works, and establishes a committee (art. 4) to develop and protect the legal offer of digital works, under which scope possible self-regulatory solutions may be discussed with the aim to support the development of digital works.
Chapter III regulates the procedure aimed at ascertaining and eliminating breaches of copyright or connected rights occurring on electronic communication networks in compliance with the national decree implementing Directive 70/2003/EC on electronic commerce, namely Legislative Decree of April 9, 2003 n. 70.
The envisaged procedure works in two stages:
- firstly, if a self-regulatory procedure of notice & take down has been duly put in place by the web site manager (i.e. it has been previously notified to the Authority), the claimant shall notify the latter asking for the removal of the illicit content following that procedure (art. 6);
- in the absence of a self-regulatory procedure, or when the illicit content is not removed in any case, then the claimant may notify the Authority about the infringement (art. 7).
The start of the process with the Authority is notified to the claimant, the uploader and the website manager (if traceable), and to service providers specifically identified in the claim (art. 8). The parties may file counterclaims. In case the recipient spontaneously makes, within 3 days from the communication, the necessary adjustments, the proceeding can be dismissed.
The proceeding with the Authority may last up to 45 days. If, upon completion of the proceedings, the Authority ascertains that a breach has been effectively committed, it shall order the concerned service provider to either selectively remove the illicit content or to disable access to it (i.e. web-blocking). While taking the decision, the Authority shall take into account the principles of graduality and proportionality, the gravity of the violation as well as the localisation of the server (art. 9). Compliance to the Authority’s decision must be ensured within 3 days.
A shorten procedure is envisaged by the draft regulation for massive violations (art. 10).
Chapter IV (arts 11-15) provides for similar procedures aimed at ascertaining and eliminating breaches of copyright or connected rights with regard to audiovisual and radio programmes pursuant to Directive 44/2010/EC on audiovisual media services.
Chapter V contains final provisions and, inter alia, a clause reserving to the Authority the right to amend the regulation.
Annexes 1 and 2 are the “Application Forms” to be compulsory used to notify the Authority respectively in accordance with Art. 7, paragraph 2 (digital works) and Art. 12, paragraph 1 (audiovisual or radio programmes).