Copyright-protected audio, audiovisual, journalistic and editorial content disseminated on electronic communication networks

‘Draft proposals to amend the regulation concerning the protection of copyright on electronic communication networks and implementation procedures in accordance with Legislative Decree No 70 of 9 April 2003, as referred to in Resolution No 680/13/CONS’, submitted for public consultation by means of Resolution No 8/18/CONS of the Authority for Communication Guarantees of 18 January 2018.

‘The draft proposals to amend the regulation concerning the protection of copyright on electronic communication networks and implementation procedures in accordance with Legislative Decree No 70 of 9 April 2003, as referred to in Resolution No 680/13/CONS’ in annex to Resolution No 8/18/CONS of the Authority for Communication Guarantees, which is the subject of this notification, concern the regulation which was adopted by the authority on 12 December 2013 and entered into force on 14 March 2014 as a result of Notification 2013/0496/I. The requirement to amend the regulation derives from the new provisions on copyright introduced by the Italian legislator — in order to achieve full compliance with Directive 2001/29/EC and Directive 2004/48/EC — by means of Law No 167 of 20 November 2017 on ‘Provisions for the fulfilment of the obligations arising from Italy's membership of the European Union — European Law 2017’, which entered into force on 12 December 2017.

Article 2 of the aforementioned law extends the tools available to the Authority for Communication Guarantees (hereinafter the Authority) in the field of online copyright through the introduction of two legal arrangements, leaving the responsibility to this Authority to adopt the implementation procedures by means of its own regulation.

The new aspects contained in the law are represented a) by the provision of a precautionary measure and b) by the provision that the prohibitory measures adopted by order of the Authority shall also be extended to repeated infringements which have already been identified by the Authority. Furthermore, the opportunity has been taken to introduce some formal amendments in order to improve the text.

1) Precautionary proceedings

Article 2 of the European Law 2017 provides the possibility for the Authority to take action against information society service providers by issuing precautionary orders aiming to ‘put an end to the infringement of copyright and related rights immediately’, insofar as the preconditions for the precautionary power, established by the fumus boni iuris and the periculum in mora, are met. Under the aforementioned legislation: ‘if these infringements are identified on the basis of a summary assessment of the facts and there is a threat of an imminent and irreparable detriment to the rights holders’.

Therefore, it was decided to add Article 9-bis under the heading ‘Precautionary proceedings’ to the regulation. The article lays down that, under the aforementioned conditions, the Authority may order, as a precautionary measure, service providers to put an end to the infringement within one day of the order notification. The precautionary order is envisaged to be adopted within three days of receipt of the request and the notification to service providers identified for this purpose, as well as, if traceable, to the uploader and the managers of the web page and website, which may lodge a complaint within five days of the notification. The order shall be also communicated to the person who submitted the request. The directorate shall initiate proceedings only when a claim has been submitted, notifying the eligible party who submitted the claim and the person who submitted the request. The deadline for transmitting rebuttal arguments is the same as the abbreviated proceeding referred to in Article 9, i.e. within three days of the notification on the initiation of proceedings. Finally, the collegiate body is expected to decide on the claim within seven days of the date on which it was submitted.

2) Measures to prevent the repetition of infringements which have already been identified by the Authority

First of all, it should be specified that during the first application of the regulation it was preferable to adopt a more cautious and prudent approach in dealing with the most problematic cases, such as those involving interventions in relation to so-called web aliases. This circumstance has limited the enforcement activity.

The increasing casuistics of web aliases which are already subject to an access prohibition order by the Authority has, therefore, long suggested the need for an in-depth reflection on the phenomenon and, above all, on the most efficient approach to tackle it. As already stated, Article 2, paragraph 3 of the European Law entrusts the Authority to identify suitable measures to prevent infringements which it has already identified from being repeated. Therefore, in accordance with the provisions of the European Law 2017, in compliance with the principles of the e-commerce directive and in order to ensure the maximum level of clarity and transparency in the regulatory provisions, it is necessary to introduce an amendment in this respect to the measures indicated in Article 8 - general rule concerning the measures issued by the collegiate body - stating explicitly that the Authority, under the provisions of Article 8, shall implement the appropriate measures to eliminate the infringements identified and to prevent them from being repeated. A specific provision will then be introduced, namely Article 8-bis of the draft regulation, on the practical application of the provisions of the European Law 2017, confirming the specific measures to be taken in the case of the identified infringements being repeated, taking into account the provider’s actual field of action and avoiding the imposition of obligations which are technically impossible to comply with.

Firstly, beginning with the amendments introduced in Article 8, paragraph 2-bis is inserted. It stipulates that archiving shall be provided for where the collegiate body considers that there is an infringement of copyright or related rights, but does not consider it possible to order access to be disabled, in the light of the criteria of graduality, proportionality and suitability. In this case, as has already happened in practice, the collegiate body shall communicate the identified infringement to the judicial police bodies, pursuant to Article 182-ter of Law No 633 of 1941 (the Copyright Law). Furthermore, paragraph 4 stipulates that in order to prevent the repetition of infringements already subject to disabling orders issued by the Authority, the service providers who perform mere conduit activities are required to disable access to the sites indicated in the list in .txt format, which is made available by the Authority.

Finally, the new article 8-bis, entitled ‘Repetition of infringements which have already been identified by the authority’ stipulates that if the eligible party considers that there is a repeated infringement of copyright or related rights which has already been identified by the Authority, they shall communicate it to the Authority, attaching any useful documentation. If the Authority’s Directorate for Audiovisual Content deems that the reported repetition does not exist, Article 7 shall apply (provided that the particular case includes the details of a separate infringement of copyright or related rights). It is stipulated that in the case of a repeated infringement which is already subject to a selective removal order or an order to disable access to the site pursuant to Article 8, paragraph 3 (order addressed to the hosting service providers), the Authority shall apply Article 8, paragraph 7 (application of sanctions referred to in Article 1, paragraph 31, of Law No 249 of 1997). In the case of a repeated infringement which is already subject to an order to disable access to the site, in accordance with Article 8, paragraph 4 (order addressed to mere conduit service providers), the authority shall update the aforementioned list in .txt format.

This provision is adopted within three days of receipt of the request and is notified to the service providers, who may lodge a complaint within five days of notification. In this last circumstance the directorate shall initiate the proceeding, notifying the eligible party who submitted the claim and the person who submitted the request. The time limit referred to in Article 9, paragraph 1, letter b) also applies in this case to the submission of rebuttal arguments, whereby the collegiate body shall decide on the complaint within seven days from the date of its submission.

Clearly, if the Authority concludes that there is no infringement of copyright or related rights, it may decide to archive the request (pursuant to Article 8, paragraph 1).