1709 Blog: for all the copyright community

Friday, 30 March 2012

More news on the online copyright regulation in Italy

Falkor was such a cutie, but
this is not what the post is about
Readers of this Blog who were kids in the 1980s, have a passion for fantasy films or are fans of Michael Ende's books will certainly remember The Never Ending Story. More than the plot of this book/film or mesmerising characters such as Falkor the luck dragon, it is its title (also recalled by La Repubblica) which is appropriate to describe the new developments in the Italian online copyright regulation saga (earlier posts here and here). 
Yesterday Italian newspaper La Stampa published what it claimed to be a draft memo/decree (this is not clear yet) prepared by Monti's government to make it clear (according to some commentators, it would be better to say 'allow') that the Italian Communication Authority (AGCOM) may go ahead with its draft online copyright regulation and publish it before its members are replaced next May.
In theory, such a memo/decree, which carries the title Disposizioni interpretative in materia di competenze dell'Autorità per le garanzie nelle comunicazioni' ("Interpretative provisions as to the competences of AGCOM") would be aimed at merely clarifying that the Italian Communication Authority has the competence to adopt its proposed regulation.

As it is unknown who drafted this memo/decree and gave it to La Stampa, this information lacks any official character and the contents may well be changed. However, the draft memo/decree includes a set of provisions which are fairly interesting to read, in that they set out guidelines as to the contents of the regulation.
In brief, these are the main points in the alleged Government's draft memo/decree:
(1) AGCOM is to be meant as the competent 'administrative authority' pursuant to Articles 14 to 17 of Legislative Decree No 70, 9 April 2003, by which Italy transposed into national law Articles 12 to 15 of the E-Commerce Directive [this, according to some commentators, would reduce the competences of two other administrative authorities, these being the Competition and Data Protection Authorities];
(2) AGCOM shall be competent to settle any controversies concerning the application of the Italian Copyright Act (Law No 633, 22 April 1941) over the internet [this point does need clarification, as it would be very difficult to sustain the legitimacy of a proviso which forbids the parties to a controversy from commencing court proceedings at any stage during this procedure];
(3) Within 30 days from the entry into force of the Government's (memo/)decree, AGCOM shall adopt a regulation which includes notice and takedown procedures relating to any contents made available in Italy by providers located anywhere in the world, and which are contrary to the Italian Copyright Act [this raises a few private international law issues, also because the law is far from settled in relation to infringements carried out over the internet];
(4) In case of non-compliance with AGCOM's orders (including cease-and-desist), fines pursuant to Article 1(30-31) of Law No 249, 31 July 1997, shall be issued [fines due to non-compliance with AGCOM's requests for documents, data and information, range between EUR 516,46 and EUR 103.291,38; fines due to non-compliance with AGCOM's orders (including cease-and-desist) range between EUR 10.329,14 and EUR 258.228,45]
(5) In case of serious infringements or reiteration of illicit activities, in addition to the fines just mentioned, AGCOM shall terminate access to the service [perhaps to be intended as internet access tout court, in pure Hadopi-style?] or, only if possible [does this mean that impeding 'access to the service' comes first?], to the contents made available and which infringe the Italian Copyright Act;
(6) AGCOM shall promote initiatives aimed at encouraging the adoption of codes of conduct to regulate the relationship between copyright owners and service providers, in order to encourage the legal supply of contents over electronic communication networks;
(7) Article 1(5-6) of Law No 128, 21 May 2004 shall be no longer in force [Article 1(5) provides for service providers, following a court order, to communicate to the police any information which may serve to locate websites and those responsible for such illicit activities; Article 1(6) provides for service providers, following a court order, to either impede access to infringing contents or remove such contents].
It is certainly an excellent thing that the future of copyright is discussed widely in Italy, also among the general public. However, as often happens, over-simplifications and/or exaggerations should be avoided, in that the issues on the table are heterogeneous and call for special attention. 
The Never Ending Story was about the charming world of Fantasia, which was threatened by a force called The Nothing, a void of darkness which consumed everything. By reading some comments in the general press, one may get the impression that also Italy is threatened by The Nothing, also known as copyright enforcement over the internet.

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