Italian Communication Authority issues its regulation on (fast-issimo) online copyright enforcement

Alberto Bellan

As The 1709 Blog announced, yesterday the Italian Communication Authority (AGCOM) issued its much-awaited Regulation on online copyright enforcement. Talented Katfriend Alberto Bellan has produced a super-swift and thorough analysis of the background to and main features of the Regulation, which the IPKat is delighted to host below:

“The Regulation, drafted and negotiated by AGCOM, grants AGCOM administrative copyright enforcement powers and introduces into the Italian system a brand-new notice and takedown procedure (NTD), which will be operated by AGCOM and will enter into force on 31 March 2014. [It comes as handy, muses Merpel, to have the same body drafting, negotiating, and applying the Regulation, especially in times of austerity and budget cuts]

Not a relaxing summer

At the very beginning of last summer, Eleonora covered the intriguing novel (or drama?) of the Italian Regulation on copyright enforcement online. At that time, AGCOM had just issued a first draft regulation (English, French, German and Italian versions available here) and launched a public consultation open to a number of stakeholders.

Despite the summer period, the public consultation was everything but relaxed.

One of the most critical points debated was whether an administrative authority such as AGCOM was entitled to issue a copyright regulation concerning online enforcement and, more in general, whether it could be vested with copyright enforcement powers [doubts around AGCOM's competence to "legislate" in this area may be considered one of the primary reasons why former members of the Authority did not adopt a regulation before the end of their office].

According to some submissions (notably, that of the Nexa Center for Internet and Society of the Turin Polytechnic, whose observations may be found here – only Italian available), the Parliament is the only institution entitled to issue regulations concerning copyright enforcement over the Internet. Indeed, AGCOM would lack such competence, as no Italian or EU provisions grants it such power. In the same perspective, it was argued that, under Italian and EU law, copyright enforcement powers are a matter reserved to civil and criminal courts, and administrative authorities would not be the best placed to deal with proceedings that involve fundamental rights, such as freedom of expression over the Internet.

On the other side, AGCOM and some right holders’ representatives (including SIAE, the Italian collecting society) argued that the Authority's power to issue copyright regulations and enforce copyright over the Internet would be granted by the Ecommerce Directive and the piece of legislation by which Italy implemented the Directive (L.D. 70/03). In general, AGCOM and the other supporters of the Regulation highlighted that they too were concerned with the protection of fundamental rights, the first of one being the inviolable et sacré copyright.

Debate around the Regulation became increasingly heated. On the one hand, the President of the Chamber of Deputies Laura Boldrini declared that she was hoping that "the Parliament and the Deputies can play a role on a delicate issue like online copyright". Similarly, Minister of Foreign Affairs Emma Bonino declared that "any regulation involving constitutional rights, and in particular freedom of expression, shall be approved by the Parliament" and that “any order to remove content form the Internet shall involve the judiciary”. On the other hand, famous classic Italian singer Gino Paoli, currently the president of SIAE, claimed that issuing the Regulation was a battle "not to be postponed any longer", for the sake of "dignity, civility and freedom" of the Italian society as a whole.

Gino Paoli, who is my mum's favourite singer [and also Merpel’s mum, who apparently inspired Gino to compose La Gatta (‘The Kat’)], eventually prevailed.

The new notice and take down procedure before AGCOM: fast and faster

Interestingly, the Regulation does not apply to copyright infringements carried out via P2P networks. Moreover, AGCOM's orders cannot target end-users. Indeed, according to Article 3:

"This regulation does neither refer to end-users that enjoy digital works by way of downloading or streaming nor the applications and programmes through which direct sharing is achieved among end-users of digital works […]".

Will this become the daily "relaxed"
work mood of the average ISP?

The main targets of the Regulation are ISPs, to which the AGCOM's orders shall be addressed, pursuant to Articles 8 and 13. In particular, ISPs that may have to comply with AGCOM’s orders are mere conduit and hosting providers. Caching providers, originally included in the first draft of the Regulation, are no longer listed therein. Interestingly, linking providers might be entitled to take part into the NTD procedure, but cannot be targeted by AGCOM’s orders; they now go under the name of “Website and Webpage Manager(s)”, along with the person who manages the website or the webpage (Art. 1, letters (g) and (h)).

The new Italian NTD procedure is regulated by Articles 6 to 9. Pursuant to Article 5, NTD procedure is completely independent from the procedures that ISPs may spontaneously adopt [and have already adopted: see for instance here for Google, here for Twitter, here for Facebook].

The procedure shall start with a notice to be filed by any "entitled person" who believes that his/her copyrighted work or other subject-matter has been made available "on a website […] in breach of [Italian] law on copyright and related rights".

If the claim is deemed admissible, AGCOM shall notify it to "the  opportunely-identified service provider", to the "uploader" and to the Webpage and Website Manager(s). This first communication shall clearly identify the digital works whose copyright has been allegedly infringed, and also include information about further steps in the procedure (Article 7(1)).

Artists are already at work
to pitch AGCOM with original ideas
for the design of the re-educative page 

At this point, three alternative scenarios may occur:

(1) The uploader, the Website/Page Manager or the ISP spontaneously decide to comply with the rights holder's request. Once informed by one of the notified subjects, the Authority shall end the proceedings.  

(2) None of these guys comply with or reply to the first communication. In this case, the rights holder's request is transmitted to AGCOM judging panel 5 days after the uploader and the ISPs have received the communication.

(3) The uploader, the Website/Webpage Manager or the ISP raise exceptions against the rights holder's claim. In this case, any of the three subjects is entitled to file a defensive brief before the Authority within 5 days from the receipt of the first communication. The Authority can extend this deadline in cases of particular complexity. Once received the defensive brief, AGCOM may decide to continue the investigation involving the parties or transmit the case to the judging panel for the decision (Art. 8).

Once the case has been examined, AGCOM judging panel shall be entitled to adopt different measures depending on whether or not the server hosting the infringing content is located on the Italian territory:

(i) If the server is on the Italian territory, AGCOM judging panel can order the Italian hosting provider to "selectively remove" the infringing content. In case of "massive" infringement, it may also order the hosting provider "to disable access" to infringing content, whichever difference there may be between the two (Art. 8(3)).

(i) If the server is located outside the Italian territory, AGCOM judging panel may order the Italian mere conduits to "disable access to the website" that hosts infringing content. Yes: the entire website (Art. 8(4)) [would that be compliant with the idea of selective blocking, as recently addressed by AG Cruz Villalon in Case C- 314/12 Telekabel?]. In this case, users could be automatically readdressed to a re-educative webpage drafted by AGCOM (Art. 8(5)).

AGCOM Regulation for dummies #1:
the fast track

ISPs shall have 3 days from the receipt of AGCOM order to comply with it (Art. 8(2)). In case of non-compliance, AGCOM may order them to pay astonishing administrative fines (from EUR 10,000 to approx EUR 258,000), which look like extremely "persuasive" amounts (Art. 8(7)).  

According to Article 8(6), the whole procedure should take no longer than 35 days from the filing of the complaint to the issuing of AGCOM judging panel's order. If you think that this is impressively fast, you should know more about the even-faster procedure envisaged by Article 9. 

This provides a sort of super-fast track, which AGCOM is entitled to adopt when, "on the basis of a first and summary cognition of the facts concerned by the application", it "believes that the facts notified represent a serious infringement of the economic rights in a Digital Work or are a case of massive infringement" (Art. 9). In assessing whether this faster procedure could apply, AGCOM will consider, among others things, whether the infringement has been established in earlier administrative procedures; whether the economic value of the copyrighted works is particularly high or the number of digital works made available is particularly significant; whether the ISP encourages, "also indirectly, the fruition of the digital works"; whether or not the diffusion of copyrighted works is taking place under consideration, eg when access is paid-for or there are ads connected to the infringing content [would not be the case most of the time? Apart from the IPKat, there are very few websites which do not host ads].

AGCOM Regulation for dummies #2:
the super-fast track

In this super-fast track, deadlines are amended as follows: AGCOM shall initiate the procedure within 3 days from the filing of the complaint, instead of 7; the uploader and/or the ISP are entitled to comply/defend themselves within 3 days from the first communication instead of 5; AGCOM judging panel shall issue the orders listed above within 12 days from the filing of the complaint instead of 35 (Art. 9(1)). Fast-issimo indeed.

Last but not least, according to Article 17, AGCOM decisions may be appealed before Italian administrative courts. This is another surprise. Indeed, since 2003, IP proceedings in Italy have been mostly dealt with by civil IP-specialised courts and, in certain cases, by criminal courts. Hence, administrative courts could be another new entry into new Italian copyright enforcement system, should it actually come into force in March 2014 (which, considering the racy political situation of the country, may not be so sure).”