Italy has transposed the DSM Directive

Merpel celebrated
Halloween in Florence

Together with Spain [Katpost here], this week it has been Italy’s turn to transpose the DSM Directive into its own law. Next week, the Legislative Decree approved by the Council of Ministers will be published on the Italian Official Journal (Gazzetta Ufficiale).

During the summer, The IPKat discussed the content of some of the most ‘interesting’ draft provisions that Italy was considering adopting to implement the Directive into its own law. The final text of the Italian Legislative Decree does not substantially depart from that draft legislation.

Let’s take a closer look at of some of the provisions – online content sharing service providers (OCSSPs), text and data mining (TDM), press publishers’ right – eventually adopted and see what mark the new Italian provisions may deserve from the perspective of compliance with their EU counterparts – respectively: Articles 17, 3-4, and 15 of the Directive.

Transposition of Article 17

Starting with the transposition of Article 17, the new Article 102-sexies of the Italian Copyright Act provides that OCSSPs are required to obtain an authorization, for example a licence, from rightholders directly or through collective rights management organizations.

Article 102-septies transposes Article 17(4). The only point of divergence from the Directive is that, also for (a), reference is made to high standards of professional diligence.

Finally, with regard to Article 17(9) of the Directive and lacking any specific indication regarding ex ante/ex post blocking in the EU text, the Italian legislature has opted (Article 102-decies) for the ex ante blocking of content pending a complaint. The Italian Communication Authority (AGCOM) is tasked with both issuing guidelines regarding the complaint and redress mechanism and deciding appeals against OCSSPs’ decisions rendered further to a complaint. The right to bring judicial proceedings is unaffected.

Mark: Pass

TDM provisions

Insofar as the Italian transpositions of Articles 3 and 4 are concerned, the following are deserving of mention.

For the exception in favour of research organizations and cultural heritage institutions, the new Article 70-ter covers not only the undertaking of acts of reproduction for TDM purposes, but also the communication to the public of the outcome of the research, if expressed through new digital works.

For the Article 4 exception or limitation, like the draft text, it is problematic that no mention is made of the reservation having to be made “in an appropriate manner”.

Mark: Back to the drawing board

Italian press publishers’ right

Insofar as the transposition of Article 15 of the Directive is concerned, the Italian solution has been the subject of heated discussions in the country.

The draft Italian provision was drafted in such a way that an obligation would subsist – on the side of both information society service providers (ISSPs) and press publishers – to negotiate a licensing agreement. The draft text also referred to a ‘fair compensation’ (equo compenso) to which press publishers would be entitled and the possibility for AGCOM to determine the amount of such fair compensation in the event that no agreement was reached between the parties.

Following the unveiling of the draft transposition text, last September, even the Italian Competition Authority (AGCM) issued a highly critical opinion, holding that a system in which public authorities like AGCOM are involved would be not just contrary to EU law but also such as to represent an undue restriction of private parties’ contractual freedom.

Well, the final text of the Italian press publishers’ right (Article 43-bis) does provide that AGCOM shall not just issue a regulation containing the criteria to determine the fair compensation due to press publishers, but – lacking an agreement between the parties and standing the right to start judicial proceedings – shall be also competent to determine the fair compensation due in specific cases.

Another paradoxical aspect is that, pending the negotiations for the conclusion of a licence, ISSPs shall not limit the visibility of press publishers’ content in their search results.

So much for introducing a new right!

Not only would press publishers in Italy be unable to decide whether to grant a licence in the first place, but use of their press publications – that is: subject matter that is valuable especially because of the timely nature of their content – would occur irrespective of the conclusion of any licence.

A final peculiarity to note is that, unlike the Directive, the Italian text also introduces a statutory definition of ‘very short extract’.

It is expected that – sooner rather than later – litigation will arise on this new provision and the Court of Justice of the European Union will be asked to rule on the (in)compatibility of it with EU law.

Mark: Literally traumatizing